In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1535
DANIEL HANSON,
Petitioner‐Appellant,
v.
DAVID BETH, KENOSHA COUNTY SHERIFF,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12‐CV‐408 — J. P. Stadtmueller, Judge.
____________________
ARGUED NOVEMBER 15, 2013 — DECIDED DECEMBER 17, 2013
____________________
Before FLAUM and HAMILTON, Circuit Judges, and
KAPALA, District Judge.*
FLAUM, Circuit Judge. Daniel Hanson appeals from the
district court’s denial of his petition for a writ of habeas cor‐
pus, which challenges his state conviction for fleeing and
eluding a Wisconsin traffic officer. At his trial, Hanson
* Of the Northern District of Illinois, sitting by designation.
2 No. 13‐1535
sought to introduce testimony that the police officer from
whom he fled had a “confrontational, aggressive and hot‐
tempered” character, but the trial court excluded the evi‐
dence under Wisconsin’s analogue to Federal Rule of Evi‐
dence 404(a). Hanson was convicted and sentenced to sixty
days in jail. He petitioned for a writ of habeas corpus, claim‐
ing that the trial court’s evidentiary ruling abridged his con‐
stitutional right to present an effective defense. Because we
do not find the last state‐court decision addressing this claim
to be contrary to, or an unreasonable application of, Su‐
preme Court precedent, we affirm.
I. Background
On June 29, 2006, Kenosha County Sheriff’s Deputy Eric
Klinkhammer initiated a traffic stop after he clocked Daniel
Hanson’s Ford Mustang travelling 15 mph over the speed
limit. It is fair to say that the stop did not pan out as either
party might have wished.
Upon coming to a halt, Hanson got out of his vehicle
waving his driver’s license. Klinkhammer told Hanson to get
back into his car. He testified that Hanson was yelling that
the officer “was taking his rights away and that he didn’t
want to be there” and was acting bizarrely. Hanson, howev‐
er, stated that Klinkhammer was the one screaming—“really
loudly and very frighteningly”—and said that he found the
situation disorienting and confusing. Klinkhammer extend‐
ed his police baton and again ordered Hanson to get back
into his vehicle. Hanson finally returned to the driver’s seat.
Klinkhammer then approached the car on the passenger
side, informed Hanson that he had been speeding, and took
Hanson’s license.
No. 13‐1535 3
As Klinkhammer walked back towards his police cruiser,
Hanson exited the car a second time. Once again the situa‐
tion became very tense. Klinkhammer re‐brandished his ba‐
ton and ordered Hanson to return to the car; eventually he
told Hanson that he was under arrest. Suddenly, Hanson
turned and made a break for his vehicle. Klinkhammer
grabbed at Hanson’s shirt and struck him with the baton.
However, Hanson tore himself loose, got back into the car,
and locked the doors.
Once inside the car, Hanson drove off and called 911 to
get directions to the nearest police station. He told the dis‐
patcher that Klinkhammer was endangering his life, and that
he wanted to find “cooler heads” to defuse the situation. The
dispatcher told him not to move because backup was on the
way, but Hanson refused and insisted that he did not feel
safe. Eventually, the dispatcher relented and gave Hanson
directions to the Pleasant Prairie police station.
Klinkhammer followed in his cruiser. A witness testified that
Hanson was driving safely down the highway, but
Klinkhammer said that at one point Hanson cut off a vehicle
while changing lanes.
At the off‐ramp, another police car tried to block Han‐
son’s progress, but Hanson navigated around it. The chase—
such as it was—ended when Hanson stopped at a red light
and police surrounded his car with guns drawn. Hanson,
who later recounted that he had been absolutely terrified,
turned off his engine and put his hands up. Klinkhammer
demanded that Hanson open the door and exit the vehicle.
Hanson did not comply, so the officers smashed the car win‐
dow, pulled him out, and arrested him.
4 No. 13‐1535
Hanson was eventually charged under Wisconsin’s felo‐
ny fleeing‐and‐eluding statute, Wis. Stat. § 346.04(3). His tri‐
al strategy was to argue that he fled in self‐defense because
he legitimately and reasonably feared for his safety. In sup‐
port of this theory, he moved in limine to introduce testimo‐
ny from a high‐school principal under whom Klinkhammer
had worked as the school’s liaison officer. The principal was
prepared to testify that Klinkhammer had a “reputation as
being confrontational, aggressive and hot‐tempered.”
Importantly, Hanson did not claim that he knew of
Klinkhammer’s reputation prior to their encounter. Rather,
he sought to advance a pure propensity theory: the princi‐
pal’s evidence showed that Klinkhammer was an aggressive
person in general, and that made it more likely that
Klinkhammer acted aggressively during the June 29 traffic
stop. Like federal courts, Wisconsin largely excludes pro‐
pensity evidence. Wis. Stat. § 904.04(1); Fed. R. Evid.
404(a)(1). But, also like federal courts, Wisconsin makes an
exception if the character evidence is offered by the accused
in a criminal case in order to prove “a pertinent trait of char‐
acter of the victim of the crime.” Wis. Stat. § 904.04(1)(b); ac‐
cord Fed. R. Evid. 404(a)(2)(B).
Hanson accordingly argued that, within the meaning of
the Wisconsin rule, Klinkhammer was a “victim” of Han‐
son’s conduct. Cf. State v. Haase, 293 Wis.2d 322, 330 (Ct. App.
2006) (holding that where the defendant eluded a police of‐
ficer and caused damage to a squad car, the officer was a
“victim” for purposes of restitution). The trial court rejected
Hanson’s theory. It concluded that fleeing‐and‐eluding was a
“victimless crime” to which the exception in § 904.04(1)(b)
did not apply. See 7 Daniel D. Blinka, Wisconsin Practice Se‐
No. 13‐1535 5
ries: Wisconsin Evidence § 404.5, at 165–66 (3d ed. 2008) (not‐
ing that “so‐called ‘victimless crimes’ (e.g., drug dealing) fall
within the general ban against using third‐parties’ character
as circumstantial evidence of conduct”).
Although deprived by this ruling of his corroborating
propensity evidence, Hanson was still able to explain to the
jury that he acted in self‐defense. Even so, the jury convicted
him. He appealed to the Wisconsin Court of Appeals and
again to the Wisconsin Supreme Court. State v. Hanson, 330
Wis.2d 140 (Ct. App. 2010); State v. Hanson, 338 Wis.2d 243
(2012). Both courts approved of the trial court’s interpreta‐
tion of Wisconsin’s rules of evidence and affirmed Hanson’s
conviction. Hanson began serving his prison sentence on
March 24, 2012, during which time he filed his petition for a
writ of habeas corpus.1
II. Discussion
So far, all we have described is a dispute about the mean‐
ing of the term “victim” in Wis. Stat. § 904.04(1)(b). We may
not quarrel with the Wisconsin Supreme Court’s interpreta‐
tion of its own rules of evidence, for “it is not the province of
a federal habeas court to reexamine state‐court determina‐
tions on state‐law questions.” Estelle v. McGuire, 502 U.S. 62,
67–68 (1991). But the question Hanson asks us to decide here
is different (a point that may have been somewhat lost dur‐
ing the state’s oral argument). Hanson contends that, taking
1 Although Hanson has since been released from prison, his habeas peti‐
tion is not moot because Wisconsin has not rebutted—indeed, has con‐
ceded—the presumption that his felony conviction carries collateral con‐
sequences. See Eichwedel v. Curry, 700 F.3d 275, 279 (7th Cir. 2012); Diaz v.
Duckworth, 143 F.3d 345, 346 (7th Cir. 1998).
6 No. 13‐1535
as given that Wisconsin’s rules precluded him from intro‐
ducing evidence in support of his self‐defense theory, the
application of those rules at his trial violated his federal
rights—specifically, his constitutional right to present an ef‐
fective defense. See, e.g., Harris v. Thompson, 698 F.3d 609, 626
(7th Cir. 2012) (noting that various constitutional provisions
together “embod[y] a substantive right to present a mean‐
ingful and complete defense”).
Our review of this federal question begins with the deci‐
sion of the last state court to adjudicate the merits of the peti‐
tioner’s claim—here, the Wisconsin Supreme Court. Kamlager
v. Pollard, 715 F.3d 1010, 1015 (7th Cir. 2013). The bulk of
Hanson’s argument before the state supreme court con‐
cerned issues of state law. But he also raised the constitu‐
tional claim we have just described, albeit “only in a cursory
fashion.” Hanson, 338 Wis.2d at 265. The court dismissed it
as follows:
The right to present a defense is grounded in princi‐
ples of due process and confrontation, and ensures
that criminal defendants are not deprived of legiti‐
mate opportunities to challenge the State’s theory,
and generally to present evidence that could create
reasonable doubt in the minds of members of the jury.
See Chambers v. Mississippi, 410 U.S. 284, 294–95 (1973).
That right is limited, though, as this court and the
United States Supreme Court have recognized. See,
e.g., Taylor v. Illinois, 484 U.S. 400, 410 (1988) (ac‐
knowledging limitations on constitutional right to
present a defense, including exclusion of evidence
“inadmissible under standard rules of evidence”);
State v. Pulizano, 155 Wis. 2d 633, 646–47 (1990)
No. 13‐1535 7
(same). As these and many other cases make clear, the
rules of evidence generally have been held to comply
with the constitutional right to present a defense.
Hanson’s challenge does nothing to draw those prec‐
edents into question. See Crawford v. Washington, 541
U.S. 36, 68 (2004); Davis v. Washington, 547 U.S. 813,
822 (2006) (discussing exceptions to the hearsay rule
and the right of confrontation).
Id. at 265–66 (parallel citations omitted).
Because this habeas corpus case involves a state‐court
judgment, Hanson must show that the quoted paragraph
was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Su‐
preme Court of the United States.” 28 U.S.C. § 2254(d)(1).
For a decision to be “contrary” to clearly established law, it
must either apply a rule that contradicts the governing law
set forth in a Supreme Court case or come to a different out‐
come than the Supreme Court has reached on materially in‐
distinguishable facts. See Brown v. Payton, 544 U.S. 133, 141
(2005). For a decision to involve an “unreasonable applica‐
tion” of clearly established law, the state court must apply
the Supreme Court’s precedents to the facts “in an objective‐
ly unreasonable manner.” Id.
The Supreme Court has not spoken directly to the consti‐
tutionality of rules like Federal Rule of Evidence 404(a)(2)—a
problem for Hanson. Cf. Pack v. Page, 147 F.3d 586, 589 (7th
Cir. 1998) (“[T]he Supreme Court has yet to hold that any
application of a rape‐shield statute is inconsistent with the
Constitution, making it particularly hard to say that failure
to make a constitutional exception … is ‘contrary to … clear‐
ly established Federal law.’”). Instead, it has described the
8 No. 13‐1535
parameters of the right to present an effective defense in
more general terms. The Court’s cases stand for two basic
propositions. First, rules of evidence must yield to a defend‐
ant’s constitutional right to present a defense when the rules
“infringe upon a weighty interest of the accused and are ar‐
bitrary or disproportionate to the purposes they are de‐
signed to serve.” Holmes v. South Carolina, 547 U.S. 319, 324
(2006) (internal quotation marks and alterations omitted); see
also Rock v. Arkansas, 483 U.S. 44, 55 (1987) (“[A] state rule of
evidence … may not be applied mechanistically to defeat the
ends of justice.”). Second, despite this limitation, “[s]tate and
federal rulemakers have broad latitude under the Constitu‐
tion to establish rules excluding evidence from criminal tri‐
als.” Holmes, 547 U.S. at 324 (quoting United States v. Scheffer,
523 U.S. 303, 308 (1998)).
Hanson argues that the Wisconsin Supreme Court’s deci‐
sion was contrary to this body of law because the court never
asked whether applying § 904.04(1)(b) to exclude character
evidence about Klinkhammer was arbitrary or dispropor‐
tionate to the rule’s purpose. Indeed, the court did not iden‐
tify a purpose at all. It simply reasoned that (1) there is a
right to present a defense, although it is limited; (2) most
rules of evidence comply with this right; and (3)
§ 904.04(1)(b) is one of those rules.
All this is true, but it does not follow that the state court
applied the wrong rule. At most, Hanson’s argument shows
that the court voiced no rule at all—that it moved from a ma‐
jor premise (most rules of evidence are constitutional) to a
conclusion (this rule of evidence is constitutional) without
stating the minor premise that linked the two. Yet the Su‐
preme Court has said that a state court does not need to cite,
No. 13‐1535 9
or even be aware of, its precedents “so long as neither the
reasoning nor the result of the state‐court decision contra‐
dicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Stock
v. Rednour, 621 F.3d 644, 648 (7th Cir. 2010) (“Our review is of
the state court’s decision, not the cases that it cited (or failed
to cite) along the way.”). The “contrary to” prong of
§ 2254(d) requires Hanson to show more than the state’s fail‐
ure to cite Holmes, Rock, or some other like case to justify its
conclusion. It requires him to show that the state court’s de‐
cision “contradicts” clearly established law, Brown, 544 U.S.
at 141, and nothing the state court said about Hanson’s fed‐
eral claim is out of step with the Supreme Court’s cases. To
the contrary, the court accurately stated their holdings.
The second way Hanson can satisfy § 2254(d) is if the
Wisconsin Supreme Court unreasonably applied clearly es‐
tablished law—if its “ruling on the claim being presented in
federal court was so lacking in justification that there was an
error … beyond any possibility for fairminded disagree‐
ment.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
Federal courts must adopt this deferential approach even
when state‐court decisions give no reasons for an outcome at
all. See id. at 786 (facing a state court’s one‐sentence sum‐
mary disposition, “a habeas court must determine what ar‐
guments … could have supported[] the state court’s deci‐
sion.”). It follows that federal courts must do the same
where, as here, the state court gave some reasons for an out‐
come without necessarily displaying all of its reasoning.
Malinowski v. Smith, 509 F.3d 328 (7th Cir. 2007), is in‐
structive. In that case, a state trial‐court excluded, as privi‐
leged, testimony by the victim’s school counselor concerning
the young victim’s difficulty perceiving and relating the
10 No. 13‐1535
truth. The defendant claimed that this violated his right to
present a defense. The operative state‐court decision did not
reference the Holmes/Rock test, or even any federal law at all.
Nevertheless, examining the relevant Supreme Court cases
and the Wisconsin law at issue, we concluded that a fair‐
minded jurist could determine that the evidence was consti‐
tutionally excluded, and so we denied the writ. Id. at 335–39.
The Wisconsin Supreme Court’s decision in this case was
likewise well within the realm of reasonableness. To begin
with, the balancing approach required by Holmes and Rock
involves very general interests. For that reason, we recently
cautioned against reading Rock too broadly in the habeas
context. See Arredondo v. Huibregtse, 542 F.3d 1155, 1170 (7th
Cir. 2008). We also noted that “a state court’s application of
the Rock methodology entails a substantial element of judg‐
ment,” so that the state court “is entitled to more leeway” on
habeas corpus review. Id. (internal quotation marks omit‐
ted). Our review of the Wisconsin’s court’s decision is thus
even more deferential than usual.
Wis. Stat. § 904.04(1)(b) also tracks FRE 404(a)(2)(B) and
thus falls squarely within those “standard rules of evidence”
that the Supreme Court has said almost always pass consti‐
tutional muster. Taylor v. Illinois, 484 U.S. 400, 410 (1988). Just
this year, the Court observed that “[o]nly rarely have we
held that the right to present a complete defense was violat‐
ed by the exclusion of defense evidence under a state rule of
evidence.” Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per
curiam). The Court also noted that the “constitutional pro‐
priety” of a state rule that was “akin to [a] widely accepted
rule of evidence … cannot be seriously disputed.” Id. at 1993;
see also Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (“[A]ny
No. 13‐1535 11
number of familiar and unquestionably constitutional evi‐
dentiary rules authorize the exclusion of relevant evi‐
dence.”); Harding v. Sternes, 380 F.3d 1034, 1048 (7th Cir.
2004) (“Rule 404(b) is not unconstitutional and therefore Illi‐
nois’ equivalent is not unconstitutional.”).
We think it very unlikely that § 904.04(1) would disturb
this trend. As the Wisconsin Supreme Court observed in re‐
gards to the state evidentiary issue, excluding the character
evidence about Klinkhammer served important, nonarbi‐
trary goals. The evidence “would have added little to the ju‐
ryʹs understanding of [Hanson’s] actions during the traffic
stop, and … likely would have confused the relevant issues.”
Hanson, 338 Wis.2d at 265. These are classic reasons to ex‐
clude character evidence. See, e.g., Michelson v. United States,
335 U.S. 469, 476 (1948) (the exclusion of character evidence
“tends to prevent confusion of issues … and undue preju‐
dice”); Advisory Committee’s Note to Fed. R. Evid. 404(a)
(1972) (“Character evidence is of slight probative value and
… tends to distract the trier of fact from the main question of
what actually happened on the particular occasion.”).
Nor does the exclusion of Hanson’s proffered character
evidence seem “disproportionate” to these interests. Holmes,
547 U.S. at 324. Even though the high‐school principal’s tes‐
timony was excluded, “the exclusion of this character evi‐
dence did not prevent the real controversy”—Hanson’s self‐
defense claim—“from being tried.” Hanson, 330 Wis.2d at
155. As the Wisconsin Court of Appeals noted, Hanson told
the jury directly about his version of the traffic stop. He testi‐
fied that Klinkhammer “screamed ‘at the top of his lungs,’
took out his baton, acted ‘gruffly’ and ‘angrily’ in taking
Hanson’s license, grabbed him, ripped his shirt, and struck
12 No. 13‐1535
him on the back of the head.” Id. In addition, “[t]he jury also
heard testimony from four character witnesses that Hanson
is a truthful and fair person,” id., along with testimony from
Klinkhammer, another police officer, an intern riding in
Klinkhammer’s car, and an onlooker, id. at 150. In light of
Hanson’s opportunity to make his case and the risks associ‐
ated with character evidence in general, there is little reason
to think that excluding the evidence violated Hanson’s con‐
stitutional rights. Cf. Fontini v. Murphy, 257 F.3d 39, 47 (1st
Cir. 2001) (rejecting a challenge to the exclusion of evidence
where the defendant “offered direct testimony on the perti‐
nent issue” of self‐defense and the exclusion was “at best in‐
direct evidence which [did] no more than add to existing
proof that [the victim] was in a mood to lunge”).
One other aspect of Hanson’s position is worth pausing
to consider. A traditional rationale for victim‐character rules
like § 904.04(1)(b) is that they give defendants “a counter‐
weight against the strong investigative and prosecutorial re‐
sources of the government.” Christopher B. Mueller & Laird
C. Kirkpatrick, Evidence: Practice Under the Rules 264–65 (2d
ed. 1999). The gist of Hanson’s argument is that both the de‐
fendant charged with fleeing the police and the defendant
charged with assault need such a counterweight. Both seek
to introduce character evidence for the same purpose: to
show that they acted (i.e., fled or attacked) because of anoth‐
er person’s (i.e., the police officer or the victim’s) aggressive
actions. Yet only the latter defendant is allowed to introduce
the evidence at trial. Indeed, as Hanson notes, Wisconsin’s
interpretation of “victim” implies that he would have been
better off—from an evidentiary perspective—if he had as‐
No. 13‐1535 13
saulted Officer Klinkhammer instead of driving to the police
station.2
At bottom, then, Hanson’s argument is not really about
whether an individual affected by a particular crime is a
“victim” or not. It is about whether, once a state decides that
some third‐party propensity evidence can be introduced to
show a defendant acted in self‐defense, the state must give
an airtight rationale for extending that option to defendants
charged with some crimes but not others.
That is a tall order. The narrow exceptions that allow cer‐
tain types of propensity evidence to be used in criminal trials
have a long pedigree, and are now “so deeply imbedded in
our jurisprudence as to assume almost constitutional pro‐
portions and to override doubts of the basic relevancy of the
evidence.” Advisory Committee’s Note to Fed. R. Evid.
404(a). But their basis “lies more in history and experience
than in logic.” Id. They are “dispensation[s] from the ordi‐
nary rules of evidence, and a curious dispensation indeed.”
United States v. Burke, 781 F.2d 1234, 1239 (7th Cir. 1985). The
victim exception in particular was historically confined
largely to cases involving homicide, assault, or rape, even
though, as Hanson contends, its rationale might arguably cut
more broadly. See H. Richard Uviller, Evidence of Character to
Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom,
130 U. Penn. L. Rev. 845, 856 n.34 (1982).
The Supreme Court long ago acknowledged “the general
opinion of courts, textwriters and the profession that” as‐
2 But note: battery of a police officer is a Class H felony (punishable by
up to 6 years in prison) while simply fleeing is only Class I (up to 3 years,
6 months). See Wis. Stat. §§ 346.17(3)(a), 939.50(3) & 940.20(2).
14 No. 13‐1535
pects of character‐evidence law are “archaic, paradoxical
and full of compromises and compensations.” Michelson, 335
U.S. at 486. “To pull one misshapen stone out of the gro‐
tesque structure,” as Hanson suggests we do here, may simi‐
larly be “more likely simply to upset its present balance be‐
tween adverse interests than to establish a rational edifice.”
Id.
In any event, the standards that govern habeas corpus
review of state‐court judgments ensure that we need not de‐
cide that question in this case. Excluding the character evi‐
dence about Officer Klinkhammer focused the jury on the
relevant issues while still permitting Hanson to make a vig‐
orous case that he was acting in self‐defense when he fled
the scene of the traffic stop. The Wisconsin Supreme Court’s
decision rejecting Hanson’s constitutional claim was neither
contrary to, nor involved an unreasonable application of,
clearly established federal law, and we must therefore deny
Hanson’s petition.
III. Conclusion
We AFFIRM the judgment of the district court.