TODD E. PETERSON, Petitioner-Appellant,
TIMOTHY DOUMA, Respondent-Appellee
Argued October 29, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 10-C-0132 -- Patricia J. Gorence, Magistrate Judge.
For Todd E. Peterson, Petitioner - Appellant: Christine M. Bowman, Barry Levenstam, Jenner & Block Llp, Chicago, IL.
For Timothy Douma, Respondent - Appellee: Katherine D. Lloyd, Office of The Attorney General, Madison, WI.
Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge .
Todd Peterson appeals from the denial of his petition for a writ of habeas corpus challenging his conviction in Wisconsin state court for sexual assault of a child. His petition raised multiple challenges to the conviction, but we granted a certificate of appealability as to only one: whether his trial attorney's failure to move to suppress a statement Peterson made to an off-duty police officer deprived him of his Sixth Amendment right to counsel. See 28 U.S.C. § 2253(c). We conclude that the state court did not unreasonably apply the clearly established law of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in evaluating counsel's performance. Reasonable jurists could disagree as to application of both the performance element and the prejudice element of the Strickland standard. We therefore affirm the district court's denial of Peterson's petition. Along the way, we explain the proper procedure for requesting amendments to a certificate of appealability.
I. Factual and Procedural Background
A Wisconsin jury convicted Todd Peterson of first degree sexual assault of a child. See Wis. Stat. § 948.02(1)(e). The jury heard testimony from Peterson's victim, a ten-year-old boy we will call M.W. The boy testified that when he was seven years old he had slept over at Peterson's house while his mother was away at a church retreat, and that on that occasion Peterson had abused him sexually. Although he regularly saw Peterson after that, M.W. kept the abuse a secret for more than a year. M.W. finally unburdened himself to two friends and his older sister one day while Peterson was at the boy's house.
The children brought the story to Trisha Liethen, an off-duty police officer who was also at the house volunteering as a mentor to M.W.'s sister through the Big Brothers Big Sisters program. In her trial testimony, Liethen described calling Peterson up from the basement and confronting him with the story, which she assumed had taken place recently. Instead of appearing surprised or denying the allegation, Peterson corrected her by saying, " that
wasn't when that happened." At that point Liethen told him to stay put and called the police.
The government also presented indirect evidence of Peterson's guilt. M.W.'s two friends, his older sister, and his mother all gave their accounts of the day M.W. came forward, corroborating the details of the boy's testimony. In addition, the court allowed the jury to hear " other acts" evidence concerning three underage girls whom Peterson had abused in the past under similar circumstances. See Wis. Stat. § 904.04(2). The jury was twice instructed to consider this evidence only for purposes of establishing motive, opportunity, intent, and absence of mistake. (No such instruction would be required today; Wisconsin has since amended § 904.04(2) to allow other acts evidence to show propensity in criminal prosecutions for sexual assault. 2005-2006 Wis. Legis. Serv. 310 (2005 A.B. 970) (West). Cf. Fed.R.Evid. 414.) Peterson did not ...