Neumann v. Jordan

• Decision Date: 28 May 1996
• Docket Number: No. 95-3253,95-3253
• Citation: 84 F.3d 985
• Parties: Christopher W. NEUMANN, Plaintiff-Appellant, v. Eurial K. JORDAN, Administrator, Division of Probation and Parole, and James Doyle, Attorney General for the State of Wisconsin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 985

84 F.3d 985

Christopher W. NEUMANN, Plaintiff-Appellant, v. Eurial K. JORDAN, Administrator, Division of Probation and Parole, and James Doyle, Attorney General for the State of Wisconsin, Defendants-Appellees.

No. 95-3253.

United States Court of Appeals Seventh Circuit.

Argued Feb. 13, 1996.

Decided May 28, 1996.

Stephen M. Glynn and Robert R. Henak (argued), Shellow, Shellow & Glynn, Milwaukee, WI, for petitioner-appellant.

Sally L. Wellman (argued), Office of Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for respondent-appellee Jordan.

James E. Doyle, Office of Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for respondent-appellee Doyle.

Before CUMMINGS, BAUER, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Christopher Neumann appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

BACKGROUND

The facts of the case, as related by the Wisconsin Appellate Court, are not in dispute. Given that the following analysis is fact-intensive, we will describe them in detail. Neumann was convicted of two counts of sexually assaulting J.H., a woman he had been dating for two years. The relationship was intimate and Neumann and J.H. had engaged in consensual sexual intercourse prior On the night of November 9, 1990, Neumann and J.H. attended a formal fraternity dance, at which Neumann became heavily intoxicated. At a post-dance party at a nearby hotel, Neumann began yelling at J.H. and then instigated a fistfight with another party goer. A short time later, Neumann was removed from the party by a hotel security guard. Neumann called J.H. from the lobby, but she refused to leave with him. At trial, another fraternity member, Marty Karrels, testified that his girlfriend asked him to give J.H. a ride home from the party because J.H. was afraid of Neumann. Karrels escorted J.H. to the lobby where they encountered Neumann. J.H. was visibly frightened of Neumann. To avoid a fight with Neumann, Karrels agreed to give Neumann a ride home. Neumann sat in the backseat, while J.H. was in the front between Karrels and his girlfriend.

                to the night of the assault.   At the time of the assault, both Neumann and J.H. were college students.   The relationship was somewhat rocky and the couple was prone to loud arguments.   However, prior to the assault, Neumann had never physically abused J.H
                

When they arrived at Neumann's apartment, Neumann got out of the two-door car and then reached across Karrels' girlfriend, grabbed J.H.'s arm, and pulled her out of the car with such force that Karrels' girlfriend and J.H. ended up on the ground. When Karrels got out to confront Neumann, J.H. began running away without her purse or shoes. Neumann ran after J.H., but Karrels and his entourage got back in the car and drove home. Upon arriving home, they called the police to report the incident.

Meanwhile, Neumann caught J.H., forced her back to his apartment building, and dragged her up the stairs to his second floor unit. One of Neumann's roommates, James Shaw, testified that Neumann and J.H. came into the apartment around 3:00 a.m. and that they were arguing. He had seen them argue before, but this was "different." According to Shaw, Neumann was a big guy who became aggressive when drunk. Shaw heard Neumann tell J.H. in a stern voice to go into his bedroom. After the bedroom door was closed, the arguing got louder so Shaw or one of the other roommates turned up the volume on the stereo.

J.H. testified that once in the bedroom, she ran to the window and screamed for help. Neumann sat on her to restrain her (he outweighed her by almost 100 pounds), and threatened to break her jaw--J.H. was a flutist--if she did not keep quiet. He also bit her hand in order to prevent her from playing the flute. Then, Neumann started kissing J.H. and told her that he was going to humiliate her. He took her pants off, and forcefully penetrated her vagina, first with his finger, and then with his penis.

After the assault, J.H. thought she could escape when Neumann fell asleep. He eventually did, but J.H. also drifted off because she was so exhausted by the struggle. When she awoke, she thought about running outside, but she was only wearing underwear and a t-shirt. She tried to wake up Neumann's roommates and went to the phone to call for help. Before she could dial 911, Neumann grabbed her and dragged her back to his bedroom. She eventually fell back asleep.

When Shaw awoke in the living room, he heard more arguing and loud noises coming from Neumann's room. He saw J.H. open the door and try to crawl out of the room wearing only underwear and a t-shirt. J.H. pleaded with Shaw to help her. Neumann was lying on the floor behind J.H. holding onto her leg. According to Shaw, J.H. looked distressed and upset and obviously had been crying. Neumann asked his roommates if they wanted to see J.H. naked and lifted her shirt. Shaw testified that although he had seen them argue before, this was "something different." Finally, Shaw and the other roommates got involved and Neumann allowed J.H. to leave.

A friend of J.H., Lisa B., testified that J.H. arrived at Lisa's apartment that morning looking "beat up." Her face was red, she had multiple bruises, and she had teeth marks on her hands. Lisa and her boyfriend wrapped J.H. in a blanket, comforted her, and then took her to the police station. Later that same day, Shaw asked Neumann Neumann was the only defense witness. He testified that he had practically no memory of the events in question. He did not remember leaving the dance, or the events that followed. He did not even remember discussing the events with Shaw the next day. He testified, however, that he never would have sexually assaulted J.H. because he loved her and believed that they would someday marry.

                about what had happened.   Neumann said that he had tried to kiss J.H. and that she started to scream rape.   Shaw testified that he had seen J.H. "joke around" before, but that she was not joking that morning
                

Prior to trial, the court ruled that evidence of Neumann and J.H.'s prior sexual relationship was admissible at trial on the issue of consent. This was correct under the Wisconsin rape shield law. Wis. Stat. § 972.11(2)(b)(1). However, after the close of evidence, the judge instructed the jury that they could not consider the couple's prior sexual relationship in deciding whether J.H. had consented to sex with Neumann. This was error under Wisconsin law. State v. Neumann, 179 Wis.2d 687, 508 N.W.2d 54, 60 (Wis.App.1993), rev. denied, --- Wis.2d ----, 513 N.W.2d 406 (1994). The jury returned a guilty verdict on both counts of sexual assault. The court sentenced Neumann to four years imprisonment to be followed by four years of probation. On appeal, the Wisconsin Appellate Court held that the pertinent instruction had been error, but that it was harmless. Id., 508 N.W.2d at 61. Neumann's federal habeas petition followed.

ANALYSIS

Federal courts are authorized to grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254. In reviewing the state court proceedings, we presume that the factual findings of the state court are correct if those findings follow a hearing on the merits and are fairly supported by the record. See Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.1996). We review the district court's findings of fact under a clearly erroneous standard. Id. We review the merits of the district court's legal conclusions de novo. Id.

A. Erroneous Rape Shield Instruction

Neumann concedes that the fact that the Wisconsin Appellate Court found the trial court's instruction erroneous under Wisconsin law is not dispositive for purposes of this case because a violation of state law does not necessarily violate the Constitution. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479,...