Appeal from the United States District Court for the Eastern District of Wisconsin, No. 86-C-0840, Robert W. Warren, Judge.
Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge.*fn*
GRANT, Senior District Judge. Charles S. Steele appeals from the denial of his petition for a writ of habeas corpus, claiming that the state trial court's limitation on cross-examination of prosecution witnesses denied his constitutional right of confrontation. We affirm the judgment of the district court.
The state of Wisconsin charged Steele with having sexual contact with three of his students, all under the age of twelve years, while he was a third grade teacher at an elementary school in Wisconsin. He had taught third graders for thirteen years. The charges stemmed from Steele's activities in a "study period" during the daily mathematics class. During this period Steele invited students to his desk in order to give individual attention to their work. He claimed that he would place the child on his knee, lap, or thigh for the purpose of reassuring and comforting the student. Occasionally he would place his arm around the student's waist in order to prevent the child from falling.
M.C.*fn1 testified that Steele would touch his penis as M.C. sat on Steele's lap. M.C. said it occurred about twenty times over a four-month period after Christmas, and about five times before Christmas. Each contact lasted about fifteen to twenty seconds. S.R. testified that Steele "juggled his fingers around" while his hand was placed on S.R.'s penis. Later in his testimony, S.R. said he only saw Steele's hand on his penis but never felt it. S.R. testified that it happened about fifteen times. M.J.C. testified that Steele touched his penis about four or five times, and a young girl testified that she saw Steele touch the boys and that she had talked to the boys about the events.
At trial, Steele sought to discredit the testimony of his accusers by cross-examining them about prior instances of lying. Steele intended to establish before the jury that M.C. had lied to Mrs. Hohn, a teacher, about the missing handcuffs from her desk, and that S.R. had lied to his father about being beaten up by an older neighbor boy. The trial judge, however, refused to permit this cross-examination of the children. A jury found Steele guilty of three counts of unlawfully and feloniously having sexual contact with a person under the age of twelve years, in violation of Wis. Stat. § 940.225(1)(d). Steele was sentenced for an indeterminate term of not more than five years on each count, to be served concurrently. The trial judge stayed execution of the sentence and ordered a five-year period of probation with the condition that Steele be incarcerated for seven months under the work release program.
Before the Wisconsin Court of Appeals, Steele challenged the sufficiency of the evidence and the credibility of his accusers. He also argued that Wis. Stat. § 906.08(2)*fn2 provides that untruthfulness of a witness can be inquired into on cross-examination, and that a denial of cross-examination would be unconstitutional. His state court appeal proved unavailing, the Supreme Court of Wisconsin denied his petition for review, and Steele began serving his sentence. Steele then sought habeas corpus relief, arguing that his sixth amendment right to confrontation was denied at trial when the court did not allow him to cross-examine witnesses about their prior instances of untruthfulness. the district court found that "the evidence would have elicited the inference that because the boys lied before, they are lying now. The exclusion of such evidence is not a violation of the sixth amendment." Appellant Appendix, A-9. The district court denied Steele's petition but certified this appeal.
Steele makes two arguments in this Court: first, that the state trial court misapplied state evidentiary law when it limited cross-examination of the key prosecution witnesses; and second, that the limitation on cross-examination impinged his constitutional right of confrontation.
Steele argues that the evidence he sought to introduce was specifically admissible under Wis. Stat. § 906.08(2). The Wisconsin statutory provision, like Fed. R. Evid. 608(b), generally bars evidence of specific instances of conduct of a witness offered for the purpose of attacking or supporting the witness's credibility. There are two exceptions: specific instances are provable when they have been the subject of criminal conviction; and specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness. The state evidentiary rule, however, is not a proper subject of inquiry in a federal habeas corpus proceeding. Federal habeas review under 28 U.S.C. § 2254(a) should consider only violations of the Constitution, laws or treaties of the United States. United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir.), cert. denied, 414 U.S. 846, 94 S. Ct. 112, 38 L. Ed. 2d 94 (1973). A federal court in habeas corpus proceedings may "not take the extraordinarily intrusive action of setting aside a state criminal conviction in the guise of due process review, simply because [it] disagree[s] with the state court's interpretation of state law." United States ex rel. Burnett v. Illinois, 619 F.2d 668, 671 (7th Cir.), cert. denied, 449 U.S. 880, 101 S. Ct. 229, 66 L. Ed. 2d 104 (1980). Thus, it serves no purpose for Steele to argue that, on the balance of the probative value and unfair prejudice of the desired evidence, Wisconsin law requires the court to permit the cross-examination.
Constitutional argument comes within the purview of this appeal. However, oral argument left unsettled whether Steele had earlier waged a facial challenge to Wis. Stat. § 906.08(2) on constitutional grounds. Based on our review of his habeas petition and the state court record, we conclude that he did not. Because Steele failed to make this argument in his original petition, it is too late to do so now on this appeal.*fn3
Steele's confrontation argument is one we can consider; he advanced it in his habeas petition to the district court as well as in his arguments to the Wisconsin courts. He argues that the trial judge's decision to limit cross-examination of two key witnesses denied his constitutional right to confront his accusers. Steele contends, moreover, that the trial judge's decision made all the difference in the outcome at trial. Steele was aware of prior instances of lying. He wanted to question the witnesses in order to present to the jury the fact that children are fully capable of lying. And this fact was crucial because, according to Steele, his greatest hurdle in presenting his defense was overcoming what he perceived as the natural presumption that young children do not lie about these kinds of charges. "Without any ability of the petitioner to challenge the children, the direct denial of the charges is rendered defenseless." Appellant Br. at 10.
The sixth amendment of the United States Constitution guarantees that in all criminal prosecutions the accused shall enjoy the right "to be confronted with the witnesses against him." This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). A primary interest secured by the confrontation clause is the right of cross-examination. ...