Owens v. Frank

• Decision Date: 06 January 2005
• Docket Number: No. 03-2809.,03-2809.
• Citation: 394 F.3d 490
• Parties: George OWENS, Petitioner-Appellant, v. Matthew J. FRANK, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

394 F.3d 490

George OWENS, Petitioner-Appellant, v. Matthew J. FRANK, Respondent-Appellee.

No. 03-2809.

United States Court of Appeals, Seventh Circuit.

Argued February 17, 2004.

Decided January 6, 2005.

COPYRIGHT MATERIAL OMITTED

Kathryn A. Keppel (argued), Gimbel, Reilly, Guerin & Brown, Milwaukee, WI, for Petitioner-Appellant.

William L. Gansner (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

George Owens was convicted in a Wisconsin state court of first degree recklessly endangering safety while armed, a violation of Wisconsin Statutes §§ 941.30(1) and the former 939.63(1)(A)(3). After pursuing postconviction remedies in the Wisconsin state courts, Mr. Owens filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. Mr. Owens' petition was denied, and he appealed. For the reasons set forth in the following opinion we affirm the judgment of the district court.

I BACKGROUND

A. Facts

George Owens' state conviction arose from an incident that occurred on March 18, 1997, involving his nephew, Maurice Owens. Mr. Owens and his son, George Owens, Jr., went to see Maurice Owens at a Milwaukee residence. After arriving, Mr. Owens began arguing with Maurice about an automobile. During the argument, Mr. Owens went back to his car to retrieve a shotgun. Maurice "ran into the house and slammed the door as Owens fired the shotgun at the front door. The shotgun pellets broke the glass of the screen door and splintered the door frame; some of the pellets went into the house, breaking portions of the drywall in the living room." R.8, Ex.D at 2.

Mr. Owens was arrested and charged on March 24, 1997. Maurice Owens testified at a preliminary hearing on April 1, 1997. Soon thereafter, on April 18, 1997, Mr. Owens made a demand for a speedy trial, and a trial was set for July 14, 1997. Maurice Owens, the victim in the incident, was not produced on the first trial date because the State had been unable to locate him. The trial then was rescheduled for August 20, 1997. However, the State still was unable to locate Maurice, and the trial was reset for October 29, 1997, over Mr. Owens' objection.

Prior to the October trial date, the State learned that Maurice had been the victim of an unrelated homicide. The State then requested that it be allowed to introduce Maurice Owens' preliminary hearing testimony in his absence; the trial court granted the request.

The trial commenced on October 29, 1997, as scheduled. During the course of jury deliberations, the trial court advised counsel that the foreperson had sent the judge a note concerning one of the jurors. The note read: "As foreperson it has come to my attention that [Juror K] has withheld information regarding her boyfriend, who is currently on trial. She has made it clear to me in confidence that due to this situation she cannot be objective." R.8, Ex.D at 10 (alteration in original). The trial court addressed the issue by advising counsel that it would reconvene to address the issue after the jury rendered its verdict. The defense counsel requested permission to question the juror referenced in the note, Lavita King. Apparently, the court reserved ruling on the issue. See R.8, Ex.C at 19. Shortly thereafter, the jury returned a verdict of guilty.

After the verdict, the court discharged the jury and spoke with the foreperson. She advised the trial court that King "could not trust the police and appeared to have a bias against white officers" and that King "may not have answered truthfully questions regarding knowing the defendant, his family, having strong feelings that would be anti-police officers, and matters of that sort." R.8, Ex.D at 10. The foreperson also informed the judge that King, at one point during deliberations, placed her coat over her head and refused to deliberate.¹ R.8, Ex.C at 19.

On the date of Mr. Owens' sentencing, the court recounted its conversation with the foreperson. The record on appeal does not reveal any further requests on the part of Mr. Owens to procure information from the juror. In November, Mr Owens was sentenced to nine years' imprisonment.

B. State Court Proceedings

Mr. Owens appealed his conviction to the Court of Appeals of Wisconsin. He asserted "(1) that the trial court erred in admitting the victim's preliminary-examination testimony at trial; (2) that his counsel was ineffective because he failed to question adequately the victim at the preliminary examination;² (3) that his constitutional right to a speedy trial was violated; and (4) that his right to an impartial jury was violated." R.8, Ex.D, at 1-2.

The court first addressed Mr. Owens' contention that he was denied an opportunity to cross-examine sufficiently Maurice Owens at the preliminary hearing. The court determined that Mr. Owens conceded that the testimony fit within a firmly rooted hearsay exception; Mr. Owens only maintained that he was denied effective cross-examination. The court rejected this assertion by noting that the record revealed that "the trial court did not significantly limit Owens's cross-examination of his nephew." Id. at 4.

Turning to the alleged denial of a speedy trial, the Court explained that, under both the State and Federal Constitutions, "in determining whether a defendant has been denied his or her right to a speedy trial, a court must consider: (1) the length of the delay; (2) the reason for the delay ...; (3) the defendant's assertion of his right; and (4) prejudice to the defendant." Id. at 8 (citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Day v. State, 61 Wis.2d 236, 212 N.W.2d 489, 492-94 (1973)). The court determined that the length of delay was a threshold question that required the court to find that the length was presumptively prejudicial before assessing the remaining factors. The court concluded that the seven-month delay was "relatively short" and "not so unreasonable as to be presumptively prejudicial." Id. at 9. Therefore, the court concluded, it need not consider the remaining factors.

Nevertheless, the court explained that, even if it were to consider the remaining factors, those considerations, taken together, did not support Mr. Owens' claim that he was denied a speedy trial. Although the court acknowledged that Mr. Owens had "consistently asserted his right to a speedy trial," id. at 9, the cause for the delay and its short length weighed heavily against Mr. Owens' claim. As to the final consideration, the court explained that the only prejudice Mr. Owens offered was that he was unable to cross-examine Maurice Owens at trial. The court found, however, that Maurice would have been similarly unavailable at the earlier trial dates. At any of the trial dates, Maurice Owens would not have been available to testify; therefore, there was no prejudice from the short delay and no denial of a speedy trial.

Finally, the court addressed Mr. Owens' claim regarding the denial of an impartial jury. The appellate court recounted the contents of the foreperson's note to the trial judge and the subsequent conversation between the foreperson and the judge. The court characterized Mr. Owens' contentions on this claim as presenting an "undeveloped argument." Id. at 10. It explained that whether a new trial was warranted depended on whether the juror incorrectly responded to a material question during voir dire and whether it was more probable than not that the juror was biased against Mr. Owens. The appellate court determined that Mr. Owens had "not alleged any facts to establish that [King] was biased against him." Id. at 11. The court stated that the record only indicated that King "may have been biased in his favor because the foreperson indicated that the juror may have had a relationship with Owens"³ and had a "bias against the white police officers who testified against [him]." Id. Further, the court held that Mr. Owens had not alleged any facts that indicated King provided extraneous prejudicial information to the jury. Concluding there was no evidence of bias against Mr. Owens, the court denied this claim and affirmed the conviction.

C. District Court Proceedings

After the Supreme Court of Wisconsin denied Mr. Owens' petition for review, he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. The district court first addressed the speedy trial claim and explained that the Supreme Court has adopted a balancing test that weighs both the conduct of the prosecution and the defendant. To trigger this analysis, the court noted, "the accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial delay." R.35 at 9 (citing Doggett, 505 U.S. at 651-52, 112 S.Ct. 2686).

The court determined that the Wisconsin appellate court had applied the correct Supreme Court precedent; it was only necessary, therefore, to consider whether the Wisconsin decision involved an "unreasonable application" of that precedent, specifically, Barker, 407 U.S. 514, 92 S.Ct. 2182. The court rejected Mr. Owens' assertion that the Wisconsin courts had employed a bright-line rule for presumptive prejudice. The district court noted that the state court had relied upon applicable precedent of the Supreme Court of the United States in determining that the delay was not so unreasonable as to be presumptively prejudicial. The district court also held that the state court "went further than necessary" when it balanced the remaining Barker factors. R.35 at 11. This further assessment — one that also concluded Mr. Owens was not prejudiced by the delay — was not an unreasonable application of the Barker ...