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Dunlap v. Hepp

February 1, 2006

CHARLES A. DUNLAP, PETITIONER-APPELLANT,
v.
RANDY HEPP, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 03-C-161-William E. Callahan, Jr., Magistrate Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED NOVEMBER 8, 2005

Before BAUER, MANION, and EVANS, Circuit Judges.

Before us is Charles Dunlap's appeal from the denial of his petition for a writ of habeas corpus. The district court granted a certificate of appealability on a single issue: whether Dunlap was deprived of his Sixth Amendment right to confront witnesses and present a defense by the state trial court's application of the Wisconsin rape shield law. Wis. Stat. § 972.11(2) (1997-98).

On November 7, 1989, Dunlap babysat then 6-year-old Jamie F. Afterwards, Jamie told her mother that Dunlap had "touched her private parts." Jamie thought her mother did not believe her, and a few days later she told her father.

He reported the incident to the police, who obtained a warrant for Dunlap's arrest. But Dunlap had left Wisconsin. He was not arrested until 8 years later when he was found in California.

When Dunlap's trial finally began, Jamie was 15 years old. She testified that when she was 6, she was left in Dunlap's care at the home of her mother's friends, Susan Smith and Gary Cox, with whom Dunlap had been staying. Jamie testified that when she was in bed, Dunlap entered the room and got in the bed beside her. She said he put his hands inside her underwear and fondled her buttocks and vagina.

Cross-examination revealed several inconsistencies in Jamie's testimony. When she was interviewed in 1989 she said that Cox's son Shawn was also in the house at the time of the incident, but at trial she said she was alone with Dunlap. In 1989 she did not say that Dunlap penetrated her vagina with his finger, but at the preliminary hearing, 8 years later, she said he had. Also in 1989 Jamie had not mentioned that Dunlap had threatened her. At trial, she said he threatened to kill her parents if she told anyone what happened.

In an effort to rehabilitate Jamie, the State called Theresa Hanson, a child protective services investigator for Walworth County, Wisconsin. Hanson had interviewed Jamie and prepared a report in 1989. She testified about typical reporting behaviors of child sexual assault victims. She said that 6-year-old children often do not grasp the concepts of "in" and "out" in regard to something being put into their genitalia. She said 6-year-olds are often confused about the details of an incident. They also have trouble with the concepts "before" and "after." She also said that fear, guilt, and embarrassment could have explained the inconsistencies in Jamie's testimony and her delay in reporting certain aspects of the assault. In addition, Hanson testified that during the 1989 interview, Jamie fidgeted, kicked the table, put her hands in her mouth, and was generally reticent about discussing the incident. This behavior, Hanson said, is consistent with that of a sexual assault victim.

During cross-examination, Hepp's counsel attempted to question Hanson about Jamie's "detailed and unexplained sexual knowledge." Counsel made an offer of proof, pointing out that Hanson's 1989 report included a statement from Ms. Smith. In that statement, Smith, who was deceased when the case was tried, had revealed concern about Jamie, who, in Smith's view, was involved in a great deal of "seductive behavior," including touching men in the genital area, "humping the family dog," and frequent masturbation. Smith noted that these behaviors occurred before the alleged assault by Dunlap.

The State objected to this evidence, saying it was barred both by the rule against hearsay and the state rape shield law. The court agreed and excluded the evidence. Dunlap was convicted of first-degree sexual assault of a child in violation of Wis. Stat. § 972.11(2). On direct appeal, he challenged the exclusion of the evidence. The Wisconsin Court of Appeals reversed Dunlap's conviction. State v. Dunlap, 620 N.W.2d 398 (2000). But the Supreme Court reinstated it. State v. Dunlap, 640 N.W.2d 112 (2002). After exhausting his state remedies, Dunlap filed a federal petition for a writ of habeas corpus, which the district court denied. This appeal followed.

A petition for a writ of habeas corpus on behalf of a person in state custody can be granted only if the state court proceeding resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). A decision is "contrary to" established federal law as determined by the Supreme Court if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an unreasonable application of Supreme Court precedent when the court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case . . . ." Williams, at 407-08. Dunlap's petition falls under the "unreasonable application" prong of § 2254(d)(1). In order for us to grant relief under this provision, the decision of the Wisconsin Supreme Court must be unreasonable-not simply erroneous and incorrect. Williams, at 411. On appeal from the district court's denial of a writ of habeas corpus, we review findings of fact for clear error and legal conclusions de novo. Rittenhouse v. Battles, 263 F.3d 689 (7th Cir. 2001).

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted by the witnesses against him. The purpose of the Confrontation Clause is to "secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315-16 (1974). Nevertheless, trial judges retain "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

In this case, the parties agree that the governing Supreme Court precedent is found in Chambers v. Mississippi, 410 U.S. 284 (1973), and Davis v. Alaska, 415 U.S. 308 (1974).*fn1 While the Wisconsin Supreme Court did not specifically mention these cases in its Dunlap decision, the case the court relied on, State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), rests on Chambers and Davis and recognizes clearly that "consistent with Chambers and Davis in some cases a defendant's confrontation and compulsory process rights might require that evidence of a complainant's prior sexual conduct be admitted, notwithstanding the fact that the evidence would otherwise be excluded by the rape shield law." Pulizzano, at 331. The ...


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