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Williams v. Thurmer

April 6, 2009


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 C 233-Aaron E. Goodstein, Magistrate Judge.

Per curiam.


Before BAUER, KANNE, and WOOD, Circuit Judges.

In March 1996 a Wisconsin jury found Yusef Williams guilty of first-degree murder, and the judge sentenced him to life imprisonment with the possibility of parole after 45 years. After exhausting his state remedies, Williams filed a pro se petition for a writ of habeas corpus, 28 U.S.C. § 2254, arguing, among other things, that his right to due process was violated when a bailiff testified during his trial. The district court denied his petition, but we certified his due-process claim for appeal. We now affirm the judgment of the district court.

At Williams's trial the State presented two key witnesses. The first, Angelo Tate, testified that he and Williams lived in the same duplex, where Williams sold drugs from his basement apartment. On the evening of October 26, 1995, Tate saw Williams shoot one of his customers, Gary Cooper. Tate also testified that he saw Williams remove Cooper's body from the house. The next day, Williams told Tate that he killed Cooper be-cause of a dispute over drugs.

Next, the State elicited testimony from Tate's friend, Lawanda Norris, who was visiting Tate the evening that Cooper was shot. Norris testified that she went to the basement-where Williams lived and sold drugs from-to use the bathroom and saw Williams and another man drag Cooper's body outside and put it into a garbage can.

The credibility of both witnesses was called into question during their testimony. Both admitted to using cocaine the evening that Cooper was shot. Tate testified that he had twice been convicted of a crime, and Norris admitted that she had six convictions. Furthermore, Tate admitted that he had not reported the shooting to the police and that he told the officers about it only after the police began questioning him.

Williams testified in his own defense. He denied killing Cooper and said that on the night of the shooting, he was staying with a friend, Debra Towns. Towns corroborated Williams's story. Williams also testified that Tate had lied about the shooting because he was angry that Williams refused to give him free drugs and money. On cross-examination, Williams reported that, on the evening before his own testimony, he confronted Tate and asked him why he lied on the stand. According to Williams, Tate responded, "They made me say that." Williams denied threatening to kill Tate and said that the bailiff heard their conversation that evening.

The State called the bailiff, Robert Haack, as a rebuttal witness. Haack testified that he had worked in the courtroom throughout the trial and that his responsibilities included "[s]security within the courtroom, and other duties as assigned." He said that, the night before, while escorting Williams out of the courtroom, Williams saw Tate and started yelling at him. Haack put Williams in a room adjacent to Tate's, and the rooms, which were separated by a window pane, were locked. Haack said that he saw Tate "cowering in a corner, fearing for his life." Haack then testified that he briefly left this area of the building, and when he returned 15 minutes later, he heard Williams scream, "Angelo, you are dead." He said that he did not hear Williams and Tate discuss whether Tate had lied during his testimony.

On direct appeal Williams's appointed attorney filed a "no-merit report" and sought to withdraw under Anders v. California, 386 U.S. 738 (1967) and Wis. Stat. R. 809.32(1), because she could not discern a non-frivolous basis for appeal. Williams filed a response, but the court agreed with counsel, and so affirmed the judgment and allowed counsel to withdraw. The court adopted counsel's report and supplemental report which analyzed, among other potential arguments, Williams's contention that Haack's testimony violated his right to due process, but concluded that the trial court's decision to allow the testimony did not violate Turner v. Louisiana, 379 U.S. 466 (1965).

The Wisconsin Supreme Court denied Williams's petition for review, and Williams filed a petition for a writ of habeas corpus raising 21 grounds for relief. A magistrate judge, presiding by consent of both parties, denied the petition, but we granted a certificate of appealability on the issue whether Haack's testimony violated Williams's due-process right.

Our de novo review of the district court's judgment is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Julian v. Bartley, 495 F.3d 487, 491-92 (7th Cir. 2007); see also 28 U.S.C. § 2254. A petitioner is entitled to a writ of habeas corpus only where a state court reaches a decision that is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2245(d)(1); Simonson v. Hepp, 549 F.3d 1101, 1105 (7th Cir. 2008). A decision is contrary to clearly established federal law where, as relevant here, a state court, con-fronted with facts materially indistinguishable from those previously before the Supreme Court, reaches a different result. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Corcoran v. Buss, 551 F.3d 703, 708 (7th Cir. 2008). A state court unreasonably applies clearly established federal law if it identifies the appropriate standard, but unreasonably applies it to the facts. See Williams, 529 U.S. at 413; Burr v. Pollard, 546 F.3d 828, 831 (7th Cir. 2008). A court's application of Supreme Court precedent is reasonable as long as it is "minimally consistent with the facts and circumstances of the case." Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999); see also Simpson v. Battaglia, 458 F.3d 585, 592 (7th Cir. 2006).

Williams argues that the Wisconsin appellate court misapplied Turner v. Louisiana, 379 U.S. 466 (1965). The defendant in Turner was convicted by a jury of murdering his victim during a robbery. 379 U.S. at 466. The two key witnesses at Turner's trial were the deputy sheriffs who investigated the crime. Id. at 467. They testified about their investigation and Turner's confession. Id. During the three-day trial, the members of the jury were sequestered, and various deputy sheriffs-including the two star witnesses-accompanied the jurors everywhere they went. Id. at 467-68.The deputies ate with the jurors, had conversations with them, and ran errands for them. Id. at 468. The Supreme Court held that the deputies' testimony subverted the basic guarantees of trial by jury. Id. at 473. The Court based its analysis on two factors: the nature of the deputies' testimony and the association between the jurors and the deputies. First, the Court noted that the deputies' testimony "was not confined to some uncontroverted or merely formal aspect of the case for the prosecution." Id. In contrast, "the credibility which the jury attached to the testimony of these two key witnesses must inevitably have determined" Turner's guilt. Id. And second, the Court found significant that the deputies' interaction with the jurors was not merely "a brief encounter," but rather was "a continuous and inti-mate association throughout a three-day trial." Id. The Court concluded that the deputies' relationship with the jury "could not but foster the jurors' confidence," which violated due process because "Turner's fate depended upon how much confidence the jury placed in these two witnesses." Id. at 474.

We turn first to Williams's assertion that the decision of the Wisconsin state court is contrary to federal law and conclude that the facts of Williams's case are not "materially indistinguishable" from the facts before the Supreme Court in Turner. In Turner, the record showed substantial and detailed information about the bailiffs' significant interaction with the jury. In particular, the bailiffs ate with, transported, conversed with, and ran errands for the jurors who were sequestered-and thus entirely dependent on the bailiffs-during a three-day trial. The record here, however, is largely silent about the type and extent of Haack's interaction with the jury. Haack testified that he had been working in the courtroom throughout the ...

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