In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3865
DOUGLAS G. HICKS,
Petitioner‐Appellant,
v.
RANDALL HEPP,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:13‐cv‐01325 — William E. Duffin, Magistrate Judge.
____________________
ARGUED DECEMBER 9, 2016 — DECIDED SEPTEMBER 7, 2017
____________________
Before WILLIAMS and HAMILTON, Circuit Judges, and
CHANG, District Judge.*
WILLIAMS, Circuit Judge. Douglas Hicks admitted to sex‐
ually molesting his victim, a former step‐son, during a rec‐
orded phone call from a police station. During the call, and
* Of the Northern District of Illinois, sitting by designation.
2 No. 15‐3865
before the confession, the victim repeatedly threatened to
harm Hicks and to tell Hicks’s other minor son about the
abuse. Ultimately, Hicks was charged with sexually molesting
the victim and tried by a jury. At trial, Hicks’s counsel played
the entire 43‐minute recorded conversation to the jury. Later,
during the state’s rebuttal argument, the prosecutor referred
to an earlier case in which Hicks had pleaded guilty after be‐
ing accused of engaging in similar conduct. He asked the jury
if it was “fair” that Hicks had been permitted to “plea bar‐
gain[]” down his felony charges to misdemeanors and receive
probation as punishment. And then, he asked the jury, “Is that
what should have happened here or should we deal with this
case?” Hicks’s trial counsel did not object to this clearly im‐
proper argument.
The jury returned a verdict of guilty and Hicks was sen‐
tenced to 25 years’ imprisonment. After a failed collateral
challenge to his conviction in state court, he filed a petition for
habeas relief pursuant to 28 U.S.C. § 2254 in federal court. The
district court denied relief, and Hicks now appeals. On appeal
he contends that the state court erred when it found that his
counsel’s failure to move to suppress the recorded conversa‐
tions, in which he confessed to the crime, did not constitute
ineffective assistance of counsel. While we find that the state
court unreasonably determined that Hicks’s trial counsel was
credible when he testified that Hicks told him that he did not
feel threatened during the call, we nonetheless find that Hicks
did not suffer prejudice from the tape’s admission, because
the other evidence of his guilt was sufficient to sustain his
conviction.
No. 15‐3865 3
Hicks also alleges that it was unreasonable for the state
court to conclude that his counsel’s decision not to object dur‐
ing rebuttal was a strategic trial decision. We agree with Hicks
that these statements were improper, and are very troubled
by the state court’s finding on the issue. Nonetheless, because
Hicks did not fairly present this claim to the Wisconsin Su‐
preme Court in his petition for review, we find that he has
procedurally defaulted on this claim for relief. As a conse‐
quence, we cannot reach the merits of this claim and affirm
the district court’s denial of habeas relief.
I. BACKGROUND
In April 2005, a 22 year‐old‐man named E.J. reported to
police that he had been sexually molested as a child by his
former stepfather, Douglas Hicks (“Hicks”). E.J. stated that
the sexual abuse began in 1996 when he was only 11 years old
and continued until 1999. In total, there were 100 to 120 sepa‐
rate incidents of sexual abuse. Almost a year after first report‐
ing the abuse to police, E.J. worked with Investigator Dale Ja‐
nus of the Oconto County Sheriff’s Department to obtain a
confession from Hicks. At Investigator Janus’s suggestion, E.J.
agreed to a one‐party consent taped phone call.
On February 6, 2006, E.J. telephoned Hicks from the
Oconto County Sheriff’s station. Before placing the call, Inves‐
tigator Janus provided E.J. with guidance on how to get Hicks
to make an incriminating statement. While Investigator Janus
told E.J. to take a softer approach with Hicks on the phone, he
also stated that “there wasn’t anything he could really say
wrong. Whatever [E.J.] felt he needed to say was okay.” R. 17‐
4 No. 15‐3865
15 at 26.1 After providing these instructions, Investigator Ja‐
nus both listened to and recorded the conversation.
Hicks answered the phone while he was driving a com‐
pany car with a new employee that he was training. The call
lasted 43 minutes and was the first time that E.J. had con‐
fronted Hicks about the abuse. During the call, E.J. made var‐
ious attempts to get Hicks to admit to the abuse. These at‐
tempts included making a number of threats including:
threats of death or bodily injury, general threats regarding
negative consequences, threats to go to the police, and threats
of continued harassment. While Hicks tried to end the call a
number of times, he never did. And, while he generally de‐
nied the abuse, he also asked if they could discuss the issue in
person, and made other statements that suggested E.J.’s alle‐
gations were true.
Towards the end of the call, E.J. changed his approach and
made a reference to Hicks’s minor son, A.H., who was E.J.’s
step brother—born to Hicks and Wendy Lambert, E.J.’s
mother. Although no longer married, Hicks and Lambert
shared custody of A.H. During the call, E.J. threatened to tell
A.H. about the abuse he endured at Hicks’s hands. After mak‐
ing this threat, the following exchange occurred:
E.J.: All you need to do is say you’re sorry. Say
you’re sorry and we can all go back to this being
like normal and you will never hear from me
again and there’ll never be any more problems
like this, and I’ll play ball with it and keep
1 All record citations are to the record in the United States District
Court for the Eastern District of Wisconsin.
No. 15‐3865 5
things the way you want them whenever an‐
other investigation like this pops up because I’m
sure there’s you know more children that you
want to molest.
Hicks: E.J., I am sorry.
E.J.: You’re sorry for what, come on, go forward,
you’re sorry for what.
Hicks: Just, you just told me to say it, I’m sorry.
E.J.: No say I’m sorry for sexually molesting
you. This isn’t going to end until you reach that
point. We got the sorry part out now we just
need to end the sexually molesting me part.
Hicks: That’s going to keep you from uh, trying
to upend, upend on [my son].
E.J.: Yes it will if you want to see your child
again, if you don’t want him to ever know about
this you’re going to say it. You’re going to say
E.J. I’m sorry for sexually molesting you.
Hicks: E.J., I’m sorry for molesting you.
R. 23‐1 at 20–21.
Several weeks after the recorded conversation, Hicks met
with Investigator Janus. During that meeting, Hicks denied
ever sexually molesting E.J. When told of the recording, Hicks
stated that he had felt threatened by E.J. and only admitted to
abusing E.J. because he felt threatened. In June 2016, Hicks
was charged with the repeated sexual assault of E.J., in viola‐
tion of Wis. Stat. § 948.025(1).
6 No. 15‐3865
A. Pretrial Proceedings
Hicks retained Attorneys K. Richard Wells and Gerald
Boyle, members of the same firm, as trial counsel. Before trial,
the government asked the court to hold a Miranda‐Goodchild
hearing to determine the admissibility of Hicks’s recorded
statements.2 Hicks’s counsel did not object to the hearing. Ra‐
ther, Wells stated on the record that he agreed with the proce‐
dure “[a]lthough we’re not really challenging the statements
and its (sic) voluntariness.” R. 17‐12 at 4. Nonetheless, Wells
believed that they “need[ed] to make a record about it.” Id.
The court held the Miranda‐Goodchild hearing. During the
hearing, Investigator Janus testified about his investigation
and the recording he made of E.J. and Hicks’s conversation.
Wells neither offered evidence nor made any argument on
Hicks’s behalf. At the end of the hearing, the court concluded
that under the totality of the circumstances, Hicks’s state‐
ments were voluntary and therefore, admissible at trial.
B. Hicks’s Criminal Trial
In March 2007, Hicks, represented by Wells and Boyle, was
tried before a jury. At trial, the government’s first two wit‐
nesses were brothers who had also been molested by Hicks as
children. The court admitted their testimony for the sole pur‐
pose of establishing Hicks’s motive. Each brother detailed
2 A Miranda‐Goodchild hearing is conducted to determine the admissi‐
bility of confessions, see State v. Jiles, 663 N.W.2d 798, 806–07 (Wis. 2003)
(discussing the purpose of a Miranda‐Goodchild hearing), and is named af‐
ter Miranda v. Arizona, 384 U.S. 436 (1966) and State ex rel. Goodchild v. Burke
133 N.W.2d 753 (Wis. 1965).
No. 15‐3865 7
how the abuse occurred. Though Hicks was prosecuted on fel‐
ony charges for these sexual assaults, that trial resulted in a
hung jury. Ultimately, Hicks entered an Alford3 plea to two re‐
duced misdemeanor charges related to the charged conduct:
the intent to contribute to the delinquency of a minor and ex‐
posing one’s genitals to a child. As a result, Hicks was sen‐
tenced to probation, which was eventually revoked for rea‐
sons not in the record, and Hicks served six months in jail.
The government also called E.J. to testify. He gave the jury
a graphic account of the repeated abuse, providing vivid de‐
tail about three specific incidents. These details included
where in the house the abuse occurred, who else was present
in the home, what movies he was watching prior to the abuse,
and the nature of the sexual acts that Hicks performed on him
and those he was forced to perform on Hicks. Although he
only provided this level of detail with regards to three inci‐
dents, he testified that there were approximately 100 to 120
separate incidents of abuse over a three‐year period, occur‐
ring on an almost weekly basis.
On direct examination, E.J. also testified about the rec‐
orded telephone conversation he had with Hicks. He
acknowledged that the call was an angry one, in which he
thought the best way to get Hicks to admit to the abuse was
to “push him.” R. 17‐14 at 12. He also acknowledged making
threats on the call. Id. Before cross examination of E.J., the de‐
fense played the entirety of the 43‐minute recorded conversa‐
tion for the purpose of “completeness.” Later, the prosecution
3 An Alford plea allows a criminal defendant to enter a guilty plea
while maintaining his innocence, as approved by the Supreme Court in
North Carolina v. Alford, 400 U.S. 25 (1970).
8 No. 15‐3865
called Investigator Janus, who testified about and recounted
portions of the recorded conversation from the stand.
Lambert, Hicks’s ex‐wife, also testified for the prosecution.
She first learned about the abuse in April 2005 around the
time that E.J. reported it to the police. Almost a year later, in
February 2006, she confronted Hicks as part of Investigator
Janus’s investigation. After she confronted him, Hicks admit‐
ted to abusing E.J. But, he also provided an excuse: his actions
were the result of the sexual abuse he had both experienced
and witnessed as a child. After this conversation, Hicks called
Lambert two more times to apologize and to attempt to speak
to E.J. in hopes that he might drop the allegations.
After the prosecution rested, Hicks testified in his own de‐
fense. He addressed the brothers’ statements that he had sex‐
ually assaulted them when they were children. While he ad‐
mitted that he had been charged with two felonies as a result
of their allegations, he reiterated that the felony trial had
ended in a hung jury. Because he had wanted to vindicate his
name, Hicks reluctantly entered into the Alford plea.
Hicks addressed the recording in which he confessed to
sexually molesting E.J. He stated that he found the conversa‐
tion “shocking,” but once E.J. threatened to take his allega‐
tions to his son A.H., “that was it. I told him what he wanted
to hear. I asked him what he wanted to hear, and I told him
what he wanted to hear.” R. 17‐15. at 166, 172.
During closing arguments, Wells urged the jury not to
credit Hicks’s confession on the tape, arguing, “What you
heard in that tape is what went down. It was threatening. It
was mean spirited. It was horrible. And there were multiple
No. 15‐3865 9
denials of anything by Mr. Hicks.” R. 17‐16 at 89. He also re‐
minded the jury that it could consider the testimony of the
two brothers only for the purpose of motive, not as evidence
of Hicks’s guilt in the instant case.
However, during its rebuttal argument, the prosecution
made a very explicit reference to the previous charges that
Hicks faced. After referring to Hicks’s Alford plea, the prose‐
cutor stated, “And was that a fair resolution what happened?
Plea bargaining it down to a couple of misdemeanors. Is that
what should have happened here or should we deal with this
case?” Id. at 108. The prosecutor concluded by asking the jury
to “judge [Hicks] on his words … [E.J.] I’m sorry for molesting
you.” Id. at 111–12.
During deliberations, the jury submitted a question, ask‐
ing the court to reveal why Hicks’s probation in his previous
case had been revoked. The court declined to answer the
question, noting that there was no evidence placed on the rec‐
ord as to why. Later that day, the jury found Hicks guilty of
the repeated sexual assault of E.J. He was sentenced to 25
years in prison, which he is currently serving.
C. Post‐Conviction Hearing in Wisconsin Trial Court
Hicks moved for post‐conviction relief in the Wisconsin
trial court.4 He challenged the admissibility of the recorded
conversation and alleged that his counsel was ineffective for
failing to object to: (1) the admission of the recorded state‐
ment; and (2) the prosecutor’s closing argument regarding his
4 Wisconsin law requires that a defendant pursue a ʺmotion for post‐
conviction or postdisposition reliefʺ in the trial court before filing the di‐
rect appeal if the basis for relief was not previously raised. Wis. Stat.
§ 809.30(h).
10 No. 15‐3865
Alford plea. Wells testified at a post‐conviction hearing held
pursuant to State v. Machner, 285 N.W.2d 905 (Wis. App. Ct.
1979) (holding that, as a prerequisite to a claim of ineffective
assistance of trial counsel, subsequent counsel must require
trial counselʹs presence and testimony at the hearing in which
his or her conduct is challenged). Although Wells testified
that E.J. made approximately 20 threats to Hicks on the re‐
cording, he believed that the telephone conversation was “to‐
tally voluntary” and that Hicks could have ended the call at
any time. R. 23‐2 at 11. Wells also testified that Hicks told him
that despite the threats, he did not feel coerced, pressured, or
intimidated in any way.
Yet, Wells’s memory of facts about the trial was contra‐
dicted by the record. The record reflected that Wells delivered
both the opening and closing statements and examinations of
the witnesses, but he testified at the Machner hearing that he
and Boyle shared the witnesses. He also testified that Boyle
delivered both the opening and closing statements.
Hicks testified at the Machner hearing and denied ever tell‐
ing his trial counsel that he did not feel threatened by E.J. Ra‐
ther, he testified that he had explicitly told trial counsel that
he felt threatened by E.J. and that E.J.’s threats to tell A.H.
were what ultimately caused him to give E.J. the apology he
demanded.
After the hearing, the trial court concluded that the state‐
ments made in the recording were voluntary and that Wells’s
decision not to object to the prosecutor’s closing argument
was a reasonable strategic decision. The court, therefore, de‐
nied Hicks’s request for a new trial.
No. 15‐3865 11
D. Hicks’s First State Appeal (Hicks I)
Hicks appealed his two ineffective assistance of counsel
claims to the Wisconsin Court of Appeals. While the appellate
court found that the prosecutor’s statements about Hicks’s Al‐
ford plea were improper, it agreed with the trial court that
Wells’s decision not to object was a reasonable strategic deci‐
sion.
However, the appellate court disagreed with the trial
court’s determination that Hicks’s statements on the phone
call were admissible and its conclusion that Wells’s failure to
object to their admissibility did not constitute the ineffective
assistance of counsel. Rather, the appellate court determined
that E.J. was acting as a police agent during the call. As a po‐
lice agent, E.J. made “impermissible threats of physical harm
and psychological intimidation … threats that no police of‐
ficer would be allowed to make in order to secure incriminat‐
ing statements.” R. 17‐5 at 4. Therefore, the appellate court re‐
manded the case to the trial court to determine whether the
statements were voluntary pursuant to State v. Clappes, 401
N.W.2d 759 (Wis. 1987) (applying the totality of the circum‐
stances analysis to determine whether a confession is volun‐
tary).
On remand, the trial court held a hearing to determine
whether the statements were made voluntarily. At that hear‐
ing, Hicks testified about specific incidents of harassment and
a job loss that he experienced as a result of his previous case.
Based upon this experience, Hicks testified that he knew he
could “lose it all again” if E.J. simply took his claims to the
police. R. 17‐9 at 6. Nonetheless, the trial court, determined
that under the totality of the circumstances, Hicks’ statements
were the “product of free and unconstrained will, reflecting
12 No. 15‐3865
deliberateness of choice” and were, therefore, voluntary and
admissible at trial.
E. Hicks’s Second State Appeal (Hicks II)
Hicks once more appealed the trial court’s determination
that the statements were voluntary to the Wisconsin Court of
Appeals, which affirmed. The appellate court found that be‐
cause Hicks did not know that E.J. was a police agent, there
was “simply no pressure to comply with police authority.”
R. 17‐19 at 9. Further, the appellate court concluded that E.J.’s
threat to tell A.H. about the abuse was not coercive. In fact,
the court viewed this specific threat as the “least problem‐
atic.” Id. at 10. If the allegations were false, the appellate court
concluded that they carried no coercive weight. But if they
were true, then the threat to report was not “impermissibly
coercive in a constitutional sense.” Id. To reach these conclu‐
sions, the appellate court credited Wells’s testimony over that
of Hicks.
Lastly, the appellate court addressed Hicks’s state‐law
claim that a new trial was warranted in the “interest of justice”
because of the prosecutor’s improper closing argument. The
troubling statements comprised only three sentences in an 11‐
page closing argument, which the jury was instructed it could
not consider as evidence. Therefore, based upon the totality
of the evidence, the appellate court was “satisfied that the real
controversy—assessing the credibility of the accuser and
accused—was fully tried in this case.” Id. at 12.
F. Hicks’s Petition for Review with the Wisconsin Su‐
preme Court
In January 2013, Hicks, who was represented by counsel,
filed a petition for review with the Wisconsin Supreme Court.
No. 15‐3865 13
He listed four issues. The first two related to the appellate
court’s determination that the statements were voluntary and,
therefore, admissible at trial. The third issue asked the court
to address his state‐law claim that he was entitled to a new
trial because the prosecutor’s improper comments prevented
the real controversy from being tried.
In his fourth issue, Hicks raised his ineffective assistance
of counsel claim based upon Wells’s failure to object to the
prosecutor’s improper argument. On that issue, he asked the
court to determine whether “trial counsel’s failure to object to
the prosecutor’s improper closing arguments constitute[d] in‐
effective assistance of counsel.” R. 17‐10 at 5. While he pro‐
vided no argument, after discussing the prosecutor’s im‐
proper argument in the section of the petition entitled, “Rea‐
sons for Granting Review,” he stated:
The petitioner recognizes the legal standards on
this issue are clearly developed, and therefore,
this issue would likely not justify review inde‐
pendently absent the other issue raised, pursu‐
ant to the standards set by Wis. Stat. § 809.62.
Hicks must nonetheless raise these claims here
to preserve them for federal habeas review. See
O’Sullivan v. Boerckel, 526 U.S. 838 (1999).
Id. at 7. He also seemingly mentioned the claim in the last sen‐
tence in his argument addressing his state‐law claim based
upon the prosecution’s closing arguments. There he stated,
“[l]ikewise, counsel’s decision not to object was not a reason‐
able strategic decision.” Id. at 27.
On March 13, 2013, the Wisconsin Supreme Court denied
Hicks’s petition for review.
14 No. 15‐3865
G. Hicks’s Federal § 2254 Petition
Hicks filed a pro se petition for a writ of habeas corpus on
November 22, 2013 in the United States District Court of the
Eastern District of Wisconsin.5 In his petition, he raised two
grounds for relief. First, he contended that his trial counsel
rendered ineffective assistance of counsel by failing to chal‐
lenge pre‐trial, the admissibility of the recorded conversation.
Second, he asserted that his trial counsel was ineffective for
failing to object to the prosecutor’s improper statements dur‐
ing closing.
While the district court concluded that the Wisconsin
Court of Appeals made an unreasonable determination of fact
when it concluded that Wells’s testimony was more credible
than Hicks’s, it nonetheless denied the writ, finding that Hicks
was not prejudiced by Wells’s failure to move to suppress the
statements. The district court also held that because Hicks had
not adequately presented his second ineffective assistance of
counsel claim in his petition to the Wisconsin Supreme Court,
the doctrine of procedural default barred its review.
The district court issued a certificate of appealability for
both issues and this appeal followed.
II. ANALYSIS
Our review is governed (and greatly limited) by the Anti‐
terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See, e.g., Harper v. Brown, No. 15‐2276, 2017 WL 3224907, at *2
5 Both parties consented to magistrate jurisdiction pursuant to 28
U.S.C. § 636(c) and the case was assigned to and decided by Magistrate
Judge William E. Duffin.
No. 15‐3865 15
(7th Cir. July 31, 2017) (noting that AEDPA provides a “de‐
manding standard” that must be met before a petitioner may
receive relief). In enacting AEDPA, Congress modified a fed‐
eral court’s role in reviewing state court convictions to “pre‐
vent federal habeas ‘retrials’ and to ensure that state‐court
convictions are given effect to the extent possible under law.”
Bell v. Cone, 535 U.S. 685, 693 (2002). Therefore, AEDPA estab‐
lishes a deferential standard, see, e.g., Stechauner v. Smith, 852
F.3d 708, 714 (7th Cir. 2017), and we will not lightly conclude
that habeas relief is necessary. Burt v. Titlow, 134 S. Ct. 10, 16
(2013); see also Harrington v. Richter, 562 U.S. 86, 102–03 (2011)
(“If this standard is difficult to meet, that is because it was
meant to be.”).
Pursuant to the statute, when a state court has adjudicated
a claim on the merits, AEDPA permits a federal court to issue
a writ of habeas corpus in only two situations. See 28 U.S.C.
§ 2254(d). First, a writ may issue if the petitioner establishes
that the state‐court decision was “contrary to or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States … .”
§ 2254(d)(1). A decision “contradicts clearly established law if
it applies a legal standard inconsistent with governing Su‐
preme Court precedent or contradicts the Supreme Courtʹs
treatment of a materially identical set of facts.” Rodriguez v.
Gossett, 842 F.3d 531, 537 (7th Cir. 2016) (citing Bell, 535 U.S. at
694).
Unreasonable application of clearly established law occurs
if a state court identifies the correct legal rule, yet applies it in
an objectively unreasonable manner. Id. (citing Yarborough v.
Gentry, 540 U.S. 1, 5 (2003)). This requires that the state court
16 No. 15‐3865
do more than just get it wrong; “even clear error will not suf‐
fice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting
Lockyer v. Andrade, 538 U.S. 63, 75–76 (2014)) (internal quota‐
tion marks omitted). This is a high burden and a petitioner
must “show that the state courtʹs ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in ex‐
isting law beyond any possibility for fairminded disagree‐
ment.” Id. (quoting Harrington v. Richter, 131 S. Ct. 770, 786–87
(2011)) (internal quotation mark omitted).
Second, a writ may issue if the petitioner establishes that
the state‐court decision was “based on an unreasonable deter‐
mination of the facts in light of the evidence in the State court
proceeding.” § 2254(d)(2). A finding of fact, however, is not
unreasonable simply because a federal habeas court would
have reached a different conclusion. Burt, 134 S. Ct. at 15
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Rather, a pe‐
titioner must rebut the state court’s factual findings by “clear
and convincing evidence.” Id. at 299 (quoting § 2254(e)(1)); see
also Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (noting
that a state court’s factual findings are presumed to be correct,
unless the petitioner “rebuts them with clear and convincing
evidence.”).
We review a district court’s denial of habeas relief de novo,
and its factual findings for clear error. Barrow v. Uchtman, 398
F.3d 597, 602 (7th Cir. 2005). Additionally, our review is of the
decisions of the highest state court to address the claims on
their merits, Stechauner, 852 F.3d at 714 (quoting Harris v
Thompson, 698 F.3d 609, 623 (7th Cir. 2012)), here Hicks I and
II.
No. 15‐3865 17
A. Hicks’s Ineffective Assistance of Counsel Claims
Hicks’s petition advances two ineffective assistance of
counsel claims.6 Hicks’s claims are governed by the well‐
established principles that the Supreme Court articulated in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland’s
two‐prong standard, to assert a successful claim of ineffective
assistance of counsel, a petitioner must first demonstrate that
counsel’s performance was deficient. Smith v. Brown, 764 F.3d
790, 795 (7th Cir. 2014). This requires that the petitioner
demonstrate that counsel’s representation fell below an
objective standard of reasonableness. See Barrow, 398 F.3d at
603 (noting that a petitioner “must show that the performance
of counsel fell outside the range of competence demanded of
attorneys in criminal cases—i.e., that it fell below an objective
standard of reasonableness.”) (quoting Strickland, 466 U.S. at
687–88) (internal quotation marks omitted).
What is objectively reasonable is determined by the pre‐
vailing professional norms. Pole, 570 F.3d at 934. At the same
time, there is “significant latitude for permissible attorney
conduct,” Mosley v. Atchison, 689 F.3d 838, 847–48 (7th Cir.
2012), and we presume, “under the circumstances, the chal‐
lenged action might be considered sound trial strategy.” Id.
(quoting Strickland, 466 U.S. at 689) (internal quotation mark
omitted). This is a highly deferential inquiry; “counsel is
strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
6 Although articulated as two separate claims, which we will address
in turn, “ineffective assistance of counsel is a single ground for relief no
matter how many failings the lawyer may have displayed.” Pole, 570 F.3d
at 934 (quoting Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005))
(internal quotation marks omitted).
18 No. 15‐3865
professional judgment.” Strickland, 466 U.S. at 690; see also
Mosley, 689 F.3d. at 848 (“To avoid the inevitable temptation
to evaluate a lawyerʹs performance through the distorting lens
of hindsight, Strickland establishes a deferential presumption
that strategic judgments made by defense counsel are reason‐
able.”).
Second, a petitioner must demonstrate that counsel’s defi‐
cient performance prejudiced his defense. Stitts v. Wilson, 713
F.3d 887, 891 (7th Cir. 2013). This requires the petitioner to
demonstrate a “reasonable probability that, but for counsel’s
unprofessional errors,” the outcome would have been differ‐
ent. Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citation
omitted). If the error had no effect on the final judgment, then
relief is not warranted, as the Sixth Amendment’s “guarantee
of counsel is to ensure that a defendant has the assistance nec‐
essary to justify reliance on the outcome of the proceeding.”
Strickland, 466 U.S. at 691–92.
A petitioner who seeks habeas relief due to the ineffective
assistance of counsel faces a high hurdle. The Supreme Court
has instructed that under these circumstances, we must em‐
ploy a “doubly deferential” standard, one which “gives both
the state court and the defense attorney the benefit of the
doubt.” Burt, 134 S. Ct. at 13 (quoting Cullen v. Pinholster, 131
S. Ct. 1388, 1403 (2011)). And, as Strickland provides “a general
standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123.
No. 15‐3865 19
1. Failure to File Motion to Suppress Recorded
Conversation
Hicks asserts that Wells rendered ineffective assistance of
counsel by failing to move to suppress the recorded conver‐
sation in which he confessed to molesting E.J. The State urges
us to conclude that Hicks did not assert this claim in his peti‐
tion before the Wisconsin Supreme Court, and therefore, the
doctrine of procedural default precludes us from reaching its
merits. But, by defending this claim on the merits to the dis‐
trict court, while simultaneously arguing to the district court
that Hicks had procedurally defaulted on his second claim,
the State implicitly waived the defense of procedural default.
See Perruquet v. Briley, 390 F.3d 505, 516 (7th Cir. 2004) (“where
the State has responded to one habeas claim on its merits
while asserting that another is procedurally barred, it has im‐
plicitly waived any contention that the first claim is also pro‐
cedurally defaulted.”). Therefore, we will address this claim
on the merits.
To successfully advance a claim of ineffective assistance of
counsel based upon the failure to file a motion to suppress, a
petitioner must demonstrate that “there was both a reasona‐
ble probability that he would have prevailed on the motion to
suppress and a reasonable probability that, if his confessions
were suppressed, he would have been acquitted.” Bynum v.
Lemmon, 560 F.3d 678, 685 (7th Cir. 2009) (citing Strickland, 466
U.S. at 694); see also United States v. Cieslowski, 410 F.3d 353, 360
(7th Cir. 2005) (“When the claim of ineffective assistance is
based on counsel’s failure to present a motion to suppress, we
have required that a defendant prove that the motion was
meritorious.”).
20 No. 15‐3865
a. The State Court Unreasonably Determined
There was No Impermissible Coercion
“A foundational principle of due process of law is that the
state cannot procure a criminal conviction through the use of
an involuntary confession.” Carrion v. Butler, 835 F.3d 764, 775
(7th Cir. 2016) (citing Schneckloth v. Bustamonte, 412 U.S. 218,
223–26 (1973)); see also United States v. Vallar, 635 F.3d 271, 282
(7th Cir. 2011). A confession is voluntary if “it is the product
of a rational intellect and free will and not the result of phys‐
ical abuse, psychological intimidation, or deceptive interroga‐
tion tactics that have overcome the defendant’s free will.” Val‐
lar, 635 F.3d at 282 (quoting United States v. Gillaum, 372 F.3d
848, 856–57 (7th Cir. 2004)) (internal quotation marks omit‐
ted). To determine whether a confession is voluntary, the
court must analyze “the totality of all the surrounding cir‐
cumstances—both the characteristics of the accused and the
details of the interrogation.” Schneckloth, 412 U.S. at 226; see
also Murdock v. Dorethy, 846 F.3d 203, 209 (7th Cir. 2017). Fur‐
ther, “coercive police activity is a necessary predicate to the
finding that a confession is not voluntary within the meaning
of the Due Process Clause of the Fourteenth Amendment.”
United States v. Sturdivant, 796 F.3d 690, 695 (7th Cir. 2015)
(quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)) (inter‐
nal quotation marks omitted).
We evaluate coercion from the perspective of a reasonable
person in the suspect’s position. United States v. Huerta, 239
F.3d 865, 871 (7th Cir. 2001). In doing so, we consider “the de‐
fendantʹs age, education, intelligence level, and mental state;
the length of the defendantʹs detention; the nature of the in‐
terrogations; the inclusion of advice about constitutional
No. 15‐3865 21
rights; and the use of physical punishment, including depri‐
vation of food or sleep.” Sturdivant, 796 F.3d at 695 (quoting
Huerta, 239 F.3d at 871) (internal quotation marks omitted).
Hicks argues that the state court erred when it determined
that he did not feel threatened by E.J. during the call. The Wis‐
consin Appellate Court cited to only state court decisions
when it evaluated whether Hicks’s confession was voluntary.
See R. 17‐9 at 8–9. But, this is of no impact to our reasoning
because, in doing so, the Wisconsin Appellate Court applied
the same totality of the circumstances test that applies when
evaluating whether a Due Process Clause violation occurred.
See, e.g., State v. Clappes, 401 N.W.2d 759, 766 (Wis. 1987) (not‐
ing that the court must evaluate the totality of the circum‐
stances to determine whether a confession is voluntary by
“balanc[ing] the personal characteristics of the defendant
against the pressures imposed upon him by police in order to
induce him to respond to the questioning.”). In Hicks I, the
state appellate court noted that E.J. “applied impermissible
threats of physical harm and psychological intimidation. He
made threats that no police officer would be allowed to make
in order to secure incriminating statements.” R. 17‐5 at 4.
The petitioner argues at length that the Wisconsin Court
of Appeals erred in Hicks II when it determined that that E.J.’s
threat to take his allegations to A.H. was not impermissibly
coercive. “[T]hreats to a suspect’s family or children, even if
implicit, certainly may render confessions involuntary,” Sorn‐
berger v. City of Knoxville, Ill., 434 F.3d 1006, 1023 (7th Cir. 2006)
(citing Lynumn v. Illinois, 372 U.S. 528, 533 (1963)). In Lynumn,
the Supreme Court found that the defendant’s confession was
involuntary when it was made “only after the police had told
her that state financial aid for her infant children would be cut
22 No. 15‐3865
off, and her children taken from her, if she did not ‘cooper‐
ate.’” Lynumn, 372 U.S. at 534. While we agree with Hicks that
the appellate court seemingly ignored his prior experience
with law enforcement when he faced the earlier charges, we
are not persuaded that the court unreasonably applied federal
law when it concluded these threats were not impermissibly
coercive. But, as we will discuss below, this does not foreclose
our finding that Hicks has established the first Strickland
prong.
In Hicks II, the appellate court concluded that Hicks’s state‐
ments were made voluntarily. See R. 17‐9 at 11. To do so, the
appellate court accepted Wells’s testimony over Hicks’s testi‐
mony regarding whether he felt threatened by E.J. It further
noted that “[i]f the trial court had concluded that Hicks actu‐
ally felt threatened by the numerous threats of physical vio‐
lence, it would have been compelled to conclude Hicks’s state‐
ments were involuntary.” Id. at 9 n.2. We find the appellate
court’s conclusion in Hicks II that Wells’s testimony was more
credible than Hicks’s problematic, as it is rebutted by clear
and convincing evidence: the transcript from trial.
Wells testified at the Machner hearing that his role during
trial was somewhat limited. He stated that he delivered nei‐
ther the opening statement nor the closing argument. He also
testified that he split the witnesses with Boyle. But, the record
reflects the opposite. Instead, what the trial transcript reveals
is that Wells delivered both the opening and closing state‐
ments and handled all of the witnesses. In light of the patently
false testimony that Wells provided about readily verifiable
facts, it was unreasonable for the state court to credit his tes‐
timony over that of Hicks. Moreover, as the district court
noted, Wells’s testimony that Hicks told him he did not feel
No. 15‐3865 23
threatened by E.J. stands in contradiction to his actions at trial.
If he knew that Hicks did not feel threatened by E.J., then
Wells allowed Hicks to perjure himself on the stand when he
testified to the contrary. See R. 17‐15 at 165–66 (asking Hicks if
he heard E.J. threatening him and whether he felt threatened,
to which Hicks responded, “Yes.”). Additionally, if he knew
that Hicks did not feel threatened, soliciting this information
on the stand would have flown in the face of Wells’s theory of
the case at trial—that this was a threatening call that elicited
a false confession.
Wells’s testimony was the only direct evidence that contra‐
dicted Hicks’s testimony and his statements to others about
how he felt during the call. When initially interviewed, Hicks
told Investigator Janus that he had felt threatened by E.J. dur‐
ing the call. He also testified at trial that he felt threatened by
E.J., an assertion that he later repeated to the pre‐sentence in‐
vestigator assigned to his case.
The Supreme Court was clear: a credible threat of physical
violence by a government agent is sufficient to establish coer‐
cion. Arizona v. Fulminante, 499 U.S. 279, 287 (1991). The State
does not dispute, and we agree, that E.J. was acting as a police
agent during the recorded conversation. If not, our inquiry
here would end, as the Due Process Clause prohibits only
state actors from using coercion to elicit a confession. See Col‐
orado v Connelly, 479 U.S. 157, 164 (1986) (“Absent police con‐
duct casually related to the confession, there is simply no ba‐
sis for concluding that any state actor has deprived a criminal
defendant of due process of law.”).
As the Wisconsin Court of Appeals noted in Hicks I, E.J.
made threats during the call that a police officer would never
be permitted to make to elicit a confession. For example, E.J.
24 No. 15‐3865
stated, “you’re going to f***ing talk to me about this right now,
or you (sic) going to have like maybe 30 days to live, alright.”
R. 23‐1 at 4. He also stated that he knew ex‐KGB agents that
might harm Hicks, id., and implied that a child molester like
Hicks would not fare well in prison. Id. at 11. It was objectively
unreasonable for the state court to conclude that these threats
were not coercive based upon Wells’s testimony that Hicks
did not feel threatened. Likewise, it was unreasonable for the
state court to therefore conclude that Wells’s decision not to
challenge the admissibility of the recorded statements was
permissible trial strategy. Therefore, Hicks has established
that the state court’s factual basis for its conclusion regarding
the first prong of the Strickland analysis was unreasonable.
b. No Prejudice in Failing to File Motion to
Suppress
Because the state court did not address whether Wells’s
failure to object to the admission of the recorded statement
was prejudicial to Hicks, we review this prong of the Strick‐
land analysis de novo. See Porter v. McCollum, 558 U.S. 30, 39
(2009) (citing Rompilla v. Beard, 545 U.S. 374, 390 (2005)). Hicks
maintains that his confession played an outsized role in his
trial, and if it had not been admitted into evidence the jury
would have returned a verdict of not guilty. We disagree.
As a threshold matter, it is not clear that the entire tran‐
script and tape would have been suppressed had Wells filed
such a motion. Before E.J. made any threats, he asked Hicks
why he had sexually molested him as a child. Hicks made an
inaudible response and then stated, “Um, can I uh, talk to you
later?” R. 23‐1 at 4. This statement could still have been pre‐
sented to the jury had a motion to suppress been successful.
The jury could infer guilt from Hicks’s failure to immediately
No. 15‐3865 25
deny E.J.’s allegation, one which was surely inflammatory and
would have invoked a visceral response if untrue.
And, while we do not doubt the prejudicial nature of
Hicks’s confession, the record overwhelmingly supports the
jury’s guilty verdict. His confession was only a portion of the
evidence the state offered against him at trial. E.J. testified in
vivid detail about the abuse he endured. His testimony was
graphic. He detailed for the jury the nature of the sexual acts,
where he was in the home when they occurred and provided
other details that supported the veracity of his testimony.
There was also motive testimony provided by his two prior
victims, who testified that they both were abused in a similar
manner to E.J. Lambert, testified that when she confronted
Hicks with E.J.’s allegations, Hicks admitted to the abuse,
even providing a justification for his actions. Despite Hicks’s
claims to the contrary, this evidence simply cannot be consid‐
ered “weak.” We cannot say that there was a reasonable prob‐
ability that the jury would have found Hicks not guilty had
the statements in the recorded conversation been suppressed.
Therefore, we reject Hicks’s claim of ineffective assistance of
counsel based upon Wells’s failure to move to suppress the
recorded the conversation and find that habeas relief is not
warranted on this claim.
2. Failure to Object to the Prosecutor’s Improper
Statements
Hicks also asserts that he is entitled to habeas relief be‐
cause Wells’s failure to object to the prosecutor’s improper
closing argument constituted ineffective assistance of coun‐
sel. During his rebuttal closing argument, the prosecutor ref‐
erenced Hicks’s Alford plea, stating that Hicks wanted the jury
to believe that he did not “really have a criminal record.” R.
26 No. 15‐3865
17‐16 at 108. And then he asked the jury, “And was that a fair
resolution for what happened? Plea bargaining it down to a
couple of misdemeanors. Is that what should have happened
here or should we deal with this case?” Id. While deliberating,
the jury submitted a question to the court about Hicks’s pro‐
bation revocation in that earlier case. The court responded
that there was no record evidence on why probation was re‐
voked, and the jury returned later that day with a guilty ver‐
dict.
Like the Wisconsin Court of Appeals, we are very troubled
by these comments. See R. 17‐5 at 6. The prosecutor’s state‐
ments were improper: the prosecutor invited the jury to con‐
vict Hicks in the current case because he had not been appro‐
priately punished in his earlier case. And, because there was
no objection, the jury was left with these questions posed just
before it went to deliberate.
Furthermore, it is clear that the jury at least contem‐
plated—if not wholly accepted—the prosecutor’s suggestion,
as evidenced by the question it submitted during delibera‐
tions. We are not convinced by the State’s position that these
were merely three sentences in an 11‐page closing argument.
The length of the statements is not what matters. The issue is
their impact, and we are hard‐pressed to say there was none.
But, because, as we discuss further below, Hicks did not fairly
present this claim to the Wisconsin Supreme Court for its con‐
sideration in his petition for review, we are barred by the doc‐
trine of procedural default from providing him relief.
a. Procedural Default Bars Review of Claim
The district court concluded that Hicks has procedurally
defaulted on this claim. We review this ruling de novo.
No. 15‐3865 27
McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013). A peti‐
tioner challenging his state conviction must “exhaust availa‐
ble state remedies before presenting his claim to a federal ha‐
beas court.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (citing
§2254(b)); see also § 2254(b)(1)(A) (stating that a writ of habeas
corpus “shall not be granted unless it appears that the appli‐
cant has exhausted the remedies available in the courts of the
State.”). The exhaustion requirement is “grounded in princi‐
ples of comity; in a federal system, the States should have the
first opportunity to address and correct alleged violations of
state prisonerʹs federal rights.” Coleman v. Thompson, 501 U.S.
722, 731 (1991) holding modified by Martinez v. Ryan, 566 U.S. 1
(2012); see also Rose v. Lundy, 455 U.S. 509, 518 (1982) (“The ex‐
haustion doctrine is principally designed to protect the state
courtsʹ role in the enforcement of federal law and prevent dis‐
ruption of state judicial proceedings.”).
Therefore, a petitioner must “fairly present” his constitu‐
tional claims through at least one complete round of the state’s
established appellate review process before presenting the
claims to a federal court for habeas review. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see also Lombardo v. United
States, 860 F.3d 547, 555 (7th Cir. 2017). This includes present‐
ing the claims to the state’s highest court in a petition for dis‐
cretionary review. Boerckel, 526 U.S. at 848. For a claim to be
“fairly presented,” the petitioner must place before the state
court both the controlling law and the operative facts in a
manner such that “the state court was sufficiently alerted to
the federal constitutional nature of the issue to permit it to re‐
solve the issue on that basis.” McDowell, 737 F.3d at 482 (inter‐
nal quotation marks and citations omitted). The failure to ex‐
haust a claim or set of claims, results in procedural default,
Oaks v. Pfister, No. 15‐2924, 2017 WL 2991742, at *2 (7th Cir.
28 No. 15‐3865
July 14, 2017) (citing O’Sullivan, 526 U.S. at 845), and we will
not consider a procedurally defaulted claim on the merits.
Lombardo, 860 F.3d at 555 (citing Martinez, 566 U.S. at 9–10).
There are limited exceptions to this rule that would allow
us to reach the merits of a procedurally defaulted claim. The
first exists where “the petitioner can demonstrate both cause
for and prejudice stemming from [the] default.” Lewis v.
Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Alternatively, a
court may reach a procedurally defaulted claim if the peti‐
tioner can demonstrate that “a miscarriage of justice would
result if habeas relief is foreclosed.” Id. This requires that the
petitioner demonstrate that he is “actually innocent of the of‐
fenses for which he was convicted, i.e., that no reasonable ju‐
ror would have found him guilty of the crime but for the er‐
ror(s) he attributes to the state court.” Id. (citing Schlup v. Delo,
513 U.S. 298, 327–29 (1995)). The petitioner, however, has not
advanced any argument that these exceptions should apply
here. Therefore, any argument that these exceptions apply has
been forfeited and we will not endeavor to construct a legal
argument on Hicks’s behalf. See Nelson v. Napolitano, 657 F.3d
586, 590 (7th Cir. 2011) (“Neither the district court nor this
court are obliged to research and construct legal arguments
for parties, especially when they are represented by coun‐
sel.”).
While Hicks concedes that he could have done more to
elaborate upon his claim, he nonetheless argues that this
claim was fairly presented to the Wisconsin Supreme Court
for two main reasons. First, because it was listed as its own
stand‐alone issue in the “Issues Presented for Review” section
of his petition. Second, he argues that passing references to
the claim in both the section entitled “Reasons for Granting
No. 15‐3865 29
Review,” and at the end of his state‐law claim related to the
closing argument were sufficient to present the claim. We dis‐
agree.
Whether a claim has been fairly presented to a state court
is evaluated using four factors:
1) whether the petitioner relied on federal cases
that engage in a constitutional analysis; 2)
whether the petitioner relied on state cases
which apply a constitutional analysis to similar
facts; 3) whether the petitioner framed the claim
in terms so particular as to call to mind a specific
constitutional right; and 4) whether the peti‐
tioner alleged a pattern of facts that is well
within the mainstream of constitutional litiga‐
tion.
Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). While
we use these factors as a guide, our overall “task is to deter‐
mine in practical terms whether the state courts were suffi‐
ciently alerted to the nature of [the petitioner’s] federal con‐
stitutional claim.” White v. Gaetz, 588 F.3d 1135, 1139 (7th Cir.
2009). Here, we find that Hicks has not met that burden.
While Hicks does identify this claim as its own stand‐
alone issue in his petition for review, his petition contains no
argument whatsoever to support it. Further, his vague and
sparse references to the claim in the 26‐page petition, were in‐
sufficient to alert the Wisconsin Supreme Court of either the
operative facts of the claim or the controlling federal law. For
example, on the final page of his petition where he addresses
his state‐law claim based upon the prosecutor’s closing argu‐
ment, he states “[l]ikewise, counsel’s decision not to object
30 No. 15‐3865
was not a reasonable strategic decision.” R. 17‐10 at 27. But,
he does not explain why this is true or cite to any decisions—
federal or state—to support this assertion. This was not
enough to meet his burden of fairly presenting the claim to
the Wisconsin Supreme Court. Because the petition did not
allow the Wisconsin Supreme court the opportunity to ad‐
dress this federal constitutional claim, the doctrine of proce‐
dural default precludes our review of the issue on the merits.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of habeas relief.
Douglas Hicks v. Randall Hepp
Court: Court of Appeals for the Seventh Circuit
Date filed: 2017-09-07
Citations: 871 F.3d 513, 2017 WL 3910113, 2017 U.S. App. LEXIS 17301
Copy CitationsCombined Opinion