In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3921
EDWARD A. HAMMER,
Petitioner-Appellant,
v.
THOMAS E. KARLEN,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 523—J. P. Stadtmueller, Judge.
____________
ARGUED MAY 22, 2003—DECIDED SEPTEMBER 5, 2003
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. For the reasons carefully enunci-
ated in the order of the learned court below dated July 8,
2002, which we adopt as our own and append hereto, we
AFFIRM the denial of Edward A. Hammer’s petition for writ
of habeas corpus.
ORDER
On May 22, 2001, Edward Hammer filed with this court a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, challenging his March 30, 1998, Wisconsin state court
convictions for fourth degree sexual assault and second
degree sexual assault of a child. He raises two arguments,
2 No. 02-3921
each of which were previously presented to the Wisconsin
Court of Appeals and the Wisconsin Supreme Court.1 First,
he claims that the trial court’s admission of certain “prior
bad act” evidence deprived him of his Fourteenth Amend-
ment right to due process. Second, he claims that the trial
judge’s refusal (pursuant to the State of Wisconsin’s rape
shield law) to admit evidence of the victims’ alleged prior
sexual conduct deprived him of his Sixth Amendment rights
to confrontation and compulsory process.
The Wisconsin Court of Appeals considered Mr. Hammer’s
arguments on September 1, 1999, but withheld judgment
and certified them to the Wisconsin Supreme Court for
resolution. That court ruled against Mr. Hammer in a 4-3
decision dated July 11, 2000, and denied a subsequent
petition for review.
The court has reviewed Mr. Hammer’s § 2254 petition,
the entire state court record, the briefs submitted by the
parties, and the cases cited therein. For the reasons set
forth below, the petition will be denied.
1
It is unclear whether Mr. Hammer’s first argument was ever
presented to the courts of the state of Wisconsin as an issue of
federal constitutional law, however. As such, the court may lack
jurisdiction to consider it. Cf. Bocian v. Godinez, 101 F.3d 465 (7th
Cir. 1996) (noting exhaustion requirement that claims be pre-
sented to state courts as federal constitutional claims prior to
federal habeas corpus review and explaining how to determine
whether a petitioner adequately presented his claims in that man-
ner). In his answer the respondent “admits” that Mr. Hammer
properly exhausted his claims, though. As the argument in ques-
tion may be equally disposed of on the merits as on the ground of
non-exhaustion, the court will not probe further the parties’
contention that all claims in Mr. Hammer’s petition have been
properly preserved for review.
No. 02-3921 3
BACKGROUND
Mr. Hammer stood trial in Racine County (Wisconsin)
Circuit Court February 10-13, 1998, charged with four
counts of sexual assault. It was alleged that in the pre-
dawn darkness of June 29, 1997, Mr. Hammer improperly
touched three young guests in the home of Mr. Hammer’s
parents, where Mr. Hammer resided. The alleged victims
were two stepsons of Mr. Hammer’s brother, Steve, and one
of the stepsons’ friends.
Mr. Hammer’s position at trial was that he was the victim
of mistaken identity. (The alleged assault occurred while
the boys were asleep or semi-asleep. Two of the three
victims testified that they did not know who touched them;
only that they had been touched.) Mr. Hammer argued that
one or more of the boys themselves may have engaged in
the allegedly improper touching—either in horseplay or as
youthful experimentation—if it did, in fact, occur.
During the course of the trial the presiding judge made
two important evidentiary decisions. First, he permitted the
prosecutor to introduce certain “prior acts” evidence. That
evidence took the form of testimony presented by the victim
of an alleged earlier indiscretion by Mr. Hammer. The
witness testified that a then 18 (or possibly 16)-year-old Mr.
Hammer awakened the then twenty-year-old witness in the
middle of the night by fondling the witness’s penis while
Mr. Hammer was a houseguest in the home where the
witness was staying. The judge deemed the evidence ad-
missible to show opportunity, mode or method of operation,
and absence of mistake—even though the event had oc-
curred several years earlier, and did not involve an under-
age victim.
Second, the judge prohibited defense counsel from cross-
examining the victims about sexual horseplay they may
have engaged in the day before the alleged assaults and
barred introduction of affirmative evidence of that horse-
4 No. 02-3921
play. This evidence, Mr. Hammer asserted, could have
shown a motive for the boys to fabricate their allegations,2
or—by showing a pattern of conduct proximately related in
time to his charged acts—could have suggested a different
assailant (one of the boys). The circuit court balanced the
policies of the state’s “rape shield” statute against the de-
fendant’s Sixth Amendment rights, and refused to permit
the testimony.
The jury convicted Mr. Hammer on two of the four
charged counts. Mr. Hammer appealed, arguing that the
disputed evidentiary decisions deprived him of a fair trial.
Finding unsettled precedent with respect to the proper ad-
mission of prior acts evidence, the Wisconsin Court of Ap-
peals certified the appeal to the Wisconsin Supreme Court
for disposition.
By a four-three majority, the state supreme court found
the contested prior acts evidence properly admitted to show
mode or method of operation (thus tending to establish the
identity of the perpetrator). This decision was reached as a
matter of Wisconsin evidentiary law and no constitutional
principles were cited in support of the decision.
The court, without dissent, also upheld the trial court’s
other disputed decision. The court found that the state’s
rape shield statute was properly invoked to exclude evi-
2
The court notes that the “fabrication” theory Mr. Hammer pre-
sents to this court is significantly different from that he presented
to the state courts. As the only issue in a habeas corpus case
is whether an earlier court reached a constitutionally unreason-
able decision, see 28 U.S.C. § 2254, evolving legal theories such as
that Mr. Hammer wishes to present seldom, if ever, result in re-
lief, cf. Pack v. Page, 147 F.3d 586, 588 (7th Cir. 1998) (noting that
changed legal theory suggests, if anything, that the challenged
state court decision was actually correct under the previously-
presented theory).
No. 02-3921 5
dence of the victims’ alleged prior sexual conduct. In doing
so it acknowledged the important constitutional rights to
cross-examination and compulsory process, but noted that
neither is absolute. In the state supreme court’s view, the
rights invoked by Mr. Hammer were little-implicated in his
trial, and outweighed by the state’s interest in protecting
the privacy of sexual assault victims.
DISCUSSION
Under 28 U.S.C. § 2254, a federal court may grant a writ
of habeas corpus only if the relevant state court decision (1)
was contrary to clearly established law, as determined by
the Supreme Court of the United States, or (2) involved an
unreasonable application of clearly established federal law,
also as determined by the Supreme Court of the United
States. These are high standards. For a state court decision
to be “contrary to” federal law, the state court must have
applied an incorrect legal test to the facts, or confronted a
set of facts materially indistinguishable from those in a
Supreme Court case but nonetheless reached a result dif-
ferent from the Court’s precedent. See Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A state court decision that
correctly identifies the governing legal principle but that
applies it unreasonably to the facts of a particular pris-
oner’s case implicates the second basis for habeas corpus
relief. See id. at 407-08. This, too, is a “demanding stan-
dard.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
For a petitioner to obtain relief on this ground, the state
court must not only have reached an incorrect result, but a
truly “unreasonable” one. See id. Thus, if the state court’s
decision is “at least minimally consistent with the facts and
circumstances of the case,” the federal court is powerless to
grant relief. Id. at 335.
Applying these standards to Mr. Hammer’s claims, it is
apparent he is not entitled to the relief he seeks. He does
6 No. 02-3921
not even attempt to meet the standards with respect to his
first (prior acts) argument. His brief in support of issuance
of the writ on this point calls the trial court’s decision
merely “questionable” and cites no Supreme Court (or any
other) precedent he believes should have compelled a dif-
ferent result. Referencing an argument in his appellate
brief he asserts that this decision “when combined with” the
other contested decision may have violated his due process
rights, but his earlier brief does not cite any federal pre-
cedent supporting even this position. As Mr. Hammer has
identified no Supreme Court precedent the courts of the
State of Wisconsin may have applied unreasonably in per-
mitting the admission of prior bad act evidence against
him,3 relief must be denied as to the claim.
In support of his second (Sixth Amendment) claim, Mr.
Hammer argues that the Wisconsin Supreme Court unrea-
sonably misapplied the holdings of Davis v. Alaska, 415
U.S. 308 (1974), Olden v. Kentucky, 488 U.S. 227 (1988),
and Chambers v. Mississippi, 410 U.S. 284 (1973),4 by up-
3
The court wishes to note that it, too, is unaware of any prece-
dent the trial court may have applied unreasonably. As the Sev-
enth Circuit Court of Appeals has remarked:
[W]hen the state merely fails to limit the prosecution’s
evidence, the only constitutional principle to which the defen-
dant can appeal is a catch-all sense of due process, and the
appeal almost always fails. If the evidence is probative, it will
be very difficult to find a ground for requiring as a matter of
constitutional law that it be excluded; and if it is not proba-
tive, it will be hard to show how the defendant was hurt by its
admission.
Watkins v. Meloy, 95 F.3d 4, 6-7 (7th Cir. 1996) (internal citations
omitted).
4
Actually, Mr. Hammer argues that the state courts reached de-
cisions “contrary to” these cited cases. As none of the cited cases
(continued...)
No. 02-3921 7
holding the trial court’s application of the Wisconsin rape
shield law to block inquiry into the victims’ own sexual
activities. The court disagrees.
While the cases cited by Mr. Hammer recognize the
importance cross-examination and presentation of favorable
witnesses may play in securing the rights guaranteed by
the Sixth Amendment, see Davis, 415 U.S. at 315; Olden,
488 U.S. at 231; Chambers, 410 U.S. at 294, none establish
an absolute right to cross-examination or presentation of
favorable witnesses. In fact, they specifically disavow the
existence of such a right. See Davis, 415 U.S. at 316 (noting
that cross-examination is “subject always to the broad dis-
cretion of a trial judge to preclude repetitive and unduly
harassing interrogation”); Olden, 488 U.S. at 232 (“a trial
court may, of course, impose reasonable limits on defense
counsel’s inquiry”); Chambers, 410 U.S. at 295 (“the right to
confront and to cross-examine is not absolute and may, in
appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process”).
Indeed, the three cases cited by the petitioner were high-
ly fact specific, see Davis, 415 U.S. at 318 (finding that
“on these facts” the trial infringed the defendant’s Sixth
Amendment rights); Chambers, 410 U.S. at 302-03 (“In
reaching this judgment, we establish no new principles of
constitutional law. Nor does our holding signal any diminu-
tion in the respect traditionally accorded to the States in
the establishment and implementation of their own crimi-
nal trial rules and procedures. Rather, we hold quite simply
that under the facts and circumstances of this case the
rulings of the trial court deprived [the defendant] of a fair
(...continued)
involved materially indistinguishable facts, however, the proper
(and likely intended) standard of analysis is that found in the sec-
ond clause of 28 U.S.C. § 2254(d)(1)—“unreasonable application.”
8 No. 02-3921
trial.”), and did no more than establish a rule that a trial
court may not abridge a defendant’s cross-examination or
presentation of favorable witnesses when doing so would
unduly impair his or her ability to present a reasonable
defense.
The state supreme court properly identified this rule, see
State v. Hammer , 236 Wis. 2d 686, 712-13 (Wis. 2000) (cit-
ing Chambers, 410 U.S. 284 and Davis, 415 U.S. 308), and
applied it reasonably to determine, inter alia, that the evi-
dence Mr. Hammer wished to present was not highly rele-
vant5 and that his interest in presenting it was outweighed
by the state’s interest in protecting the privacy of sexual
assault victims, as articulated in the state’s “rape shield”
statute, Wis. Stats. § 972.11. No more was required of the
court. See Pack, 147 F.3d at 589 (all the Constitution re-
quires “is that courts . . . give earnest consideration to the
possibility that excluding evidence under a rape shield law
may interfere unduly with the defendant’s opportunity to
present a defense of innocence”). As the state court’s deci-
sion did not involve an unreasonable application of Su-
5
The court wishes to note that Mr. Hammer has argued in only
the most conclusory terms that the evidence he wished to present
was crucial to his case, or even relevant. (Petitioner’s brief asserts
that the evidence in his favor was “far less persuasive” as a result
of the exclusion). Such perfunctory argument provides the court
with no basis from which it could conclude that the state court’s
contrary finding was unreasonable.
No. 02-3921 9
preme Court precedent,6 the court will deny Mr. Hammer
relief with respect to his second claim, as well.
Accordingly,
IT IS ORDERED that Mr. Hammer’s petition be and the
same is hereby DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
6
In fact, no such precedent exists that the state courts could have
applied unreasonably. See Pack, 147 F.3d at 589 (“Indeed, the Su-
preme Court has yet to hold that any application of a rape-shield
statute is inconsistent with the Constitution, making it particu-
larly hard to say that failure to make a constitutional rape-shield
law—which is what [the petitioner] needs in order to prevail—is
‘contrary to . . . clearly established Federal law, as determined by
the Supreme Court of the United States.’ ”).
USCA-02-C-0072—9-5-03