Peterson v. Douma

• Decision Date: 24 June 2014
• Docket Number: No. 12–2924.,12–2924.
• Parties: Todd E. PETERSON, Petitioner–Appellant, v. Timothy DOUMA, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

751 F.3d 524

Todd E. PETERSON, Petitioner–Appellant,

v.Timothy DOUMA, Respondent–Appellee.

No. 12–2924.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 29, 2013.

Decided May 6, 2014.

Rehearing and Rehearing En Banc Denied June 24, 2014.

Christine M. Bowman, Barry Levenstam, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.

Katherine D. Lloyd, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.

Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Todd Peterson appeals from the denial of his petition for a writ of habeas corpus challenging his conviction in Wisconsin state court for sexual assault of a child. His petition raised multiple challenges to the conviction, but we granted a certificate of appealability as to only one: whether his trial attorney's failure to move to suppress a statement Peterson made to an off-duty police officer deprived him of his Sixth Amendment right to counsel. See 28 U.S.C. § 2253(c). We conclude that the state court did not unreasonably apply the clearly established law of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in evaluating counsel's performance. Reasonable jurists could disagree as to application of both the performance element and the prejudice element of the Strickland standard. We therefore affirm the district court's denial of Peterson's petition. Along the way, we explain the proper procedure for requesting amendments to a certificate of appealability.

I. Factual and Procedural Background

A Wisconsin jury convicted Todd Peterson of first degree sexual assault of a child. See Wis. Stat. § 948.02(1)(e). The jury heard testimony from Peterson's victim, a ten-year-old boy we will call M.W. The boy testified that when he was seven years old he had slept over at Peterson's house while his mother was away at a church retreat, and that on that occasion Peterson had abused him sexually. Although he regularly saw Peterson after that, M.W. kept the abuse a secret for more than a year. M.W. finally unburdened himself to two friends and his older sister one day while Peterson was at the boy's house.

The children brought the story to Trisha Liethen, an off-duty police officer who was also at the house volunteering as a mentor to M.W.'s sister through the Big Brothers Big Sisters program. In her trial testimony, Liethen described calling Peterson up from the basement and confronting him with the story, which she assumed had taken place recently. Instead of appearing surprised or denying the allegation, Peterson corrected her by saying, “that wasn't when that happened.” At that point Liethen told him to stay put and called the police.

The government also presented indirect evidence of Peterson's guilt. M.W.'s two friends, his older sister, and his mother all gave their accounts of the day M.W. came forward, corroborating the details of the boy's testimony. In addition, the court allowed the jury to hear “other acts” evidence concerning three underage girls whom Peterson had abused in the past under similar circumstances. See Wis. Stat. § 904.04(2). The jury was twice instructed to consider this evidence only for purposes of establishing motive, opportunity, intent, and absence of mistake. (No such instruction would be required today; Wisconsin has since amended § 904.04(2) to allow other acts evidence to show propensity in criminal prosecutions for sexual assault. 2005–2006 Wis. Legis. Serv. 310 (2005 A.B. 970) (West). Cf. Fed.R.Evid. 414.) Peterson did not testify in his own defense and did not call any witnesses. The jury returned a guilty verdict. Because of his multiple past offenses, Peterson was sentenced to life in prison without possibility of parole.

Peterson recruited a new lawyer and pursued post-conviction relief in state court. He claimed his trial counsel had been ineffective and that the other-acts evidence was improperly admitted. The trial court held an evidentiary hearing and denied relief. The state appellate court affirmed that decision as well as Peterson's conviction. After unsuccessfully petitioning the Wisconsin Supreme Court for review, Peterson—now acting pro se—filed a petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court denied his petition and denied him a certificate of appealability. Peterson appealed anyway, which we construed as a request for a certificate. See Fed. R. App. P. 22(b)(2). A judge of this court granted the certificate on the ground specified below.

The statute governing habeas relief requires a prisoner who seeks to appeal a district court's denial of his petition first to obtain a certificate of appealability by making “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The prisoner need not show he is likely to prevail, but he must show that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), following Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Jones v. Basinger, 635 F.3d 1030, 1039–40 (7th Cir.2011).

If granted, the certificate will explain “which specific issue or issues satisfy the showing required.” § 2253(c)(3). In this case, the certificate granted to Peterson stated that he had made a sufficient showing that his Sixth Amendment right to counsel was violated when his trial attorney did not seek suppression of Peterson's incriminating statement to Liethen that “that wasn't when that happened.” The certificate further instructed the parties to “address, along with any other matters counsel deems advisable, whether the Wisconsin court unreasonably concluded that Peterson was not in custody despite the officer's direction that he remain on the scene until the arrival of on-duty officers.” We appointed counsel to represent Peterson in this appeal.

II. Analysis

Our consideration of Peterson's habeas petition proceeds in two steps. We first clarify the issue properly before us in this appeal. We then review the district court's conclusion that the state court's adjudication of that issue did not involve an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). We review de novo the district court's denial of the petition. Harris v. Hardy, 680 F.3d 942, 948 (7th Cir.2012).

A. The Certificate of Appealability

Peterson's habeas corpus petition raised a host of claims, including six separate grounds for ineffective assistance of counsel. We found the required substantial showing as to only one issue: whether trial counsel's failure to move to suppress Peterson's statement to Liethen violated his Sixth Amendment rights. In this appeal, however, Peterson's attorney has briefed not only that claim but also two additional theories of ineffective assistance of counsel, as well as a stand-alone due process claim based on the admission of other-acts evidence.

Although not strictly required by the plain text of § 2253, we have repeatedly said that an appeals panel will decide the merits of only those issues included in the certificate of appealability. E.g., Bolton v. Akpore, 730 F.3d 685, 698 (7th Cir.2013); Fountain v. United States, 211 F.3d 429, 433 (7th Cir.2000) (“without an expansion of the certificate by this Court, we are not required to and will not address” additional issues). Nor does opposing counsel need to address uncertified issues. E.g., Schaff v. Snyder, 190 F.3d 513, 528 n. 16 (7th Cir.1999); Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir.1998). Even the petitioner's own attorney does not have to pursue uncertified issues at the petitioner's demand, provided the attorney has independently evaluated their merits. Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir.2011).

Peterson reads the certificate we granted to encompass all four of the issues he has raised, relying on its instruction that the parties address, “along with any other matters counsel deems advisable,” the Wisconsin court's finding that Peterson was not in custody. The quoted aside cannot support the weight Peterson places on it. That language immediately followed our statement that Peterson had made a substantial showing of a Sixth Amendment violation “when his defense attorney at trial failed to move to suppress Peterson's statement.” That was the issue certified for appeal. The additional comment was a directive to both parties, in arguing the certified issue, to address whether Liethen's command to Peterson meant he was in police custody, as well as any other points relevant to the suppression issue. See Fountain, 211 F.3d at 433 (similar language in a certificate of appealability could not be read as giving counsel free rein to raise unrelated arguments). In context, the passage was not an invitation to revive uncertified issues.¹

This does not mean that a petitioner is foreclosed from ever pursuing additional issues on appeal. The petitioner may ask the court to amend the certificate of appealability before briefing begins. See Thompson v. United States, 732 F.3d 826, 831 (7th Cir.2013), quoting Lavin, 641 F.3d at 832 (counsel “should not simply brief the additional claims, but should first request permission to do so”). This procedure clarifies the issues under review, alerts appellees to the arguments they must answer, and saves both parties and the court from extensive treatment of meritless claims or unnecessary rounds of supplemental briefing. Nor will it erode the certificate's role as “a screening device, helping to conserve judicial (and prosecutorial) resources.” Young v. United States, 124 F.3d 794, 799 (7th Cir.1997). Where at least one issue has already been certified, the additional burden of (re)...