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Welch v. Hepp

United States Court of Appeals, Seventh Circuit

July 14, 2015

CORY M. WELCH, Petitioner-Appellant,
v.
RANDALL HEPP, Respondent-Appellee

Argued April 29, 2015

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CV-683 -- Nancy Joseph, Magistrate Judge.

AFFIRMED.

For Cory M. Welch, Petitioner - Appellant: Robert J. Palmer, Attorney, May, Oberfell & Lorber, ishawaka, IN.

For Randall Hepp, Respondent - Appellee: Christopher G. Wren, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

Before BAUER, MANION, and HAMILTON, Circuit Judges.

OPINION

HAMILTON, Circuit Judge.

Cory Welch was convicted by a jury of eight counts of armed robbery, conspiracy, fleeing an officer, and misdemeanor bail-jumping. Forty-two witnesses testified against him, including twelve police officers. Two officers in their testimony referred to other criminal charges against Welch. After exhausting his appeals in the state courts, Welch filed a petition under 28 U.S.C. ยง 2254 asserting that the admission of those statements violated his right to a fair trial and that his counsel was ineffective for not contesting them. The district court denied relief.

The Wisconsin appellate court had concluded that any error in admitting the two officers' statements would have been harmless because of the quantity and quality of evidence against Welch. We certified the fair-trial question for appeal under 28 U.S.C. § 2253(c). We conclude that the Wisconsin appellate court's decisions on both the ineffective-assistance and fair-trial issues were reasonable, so we affirm the district court's judgment.

I. Factual and Procedural Background

For several weeks a band of armed men were robbing restaurants and businesses in a Milwaukee neighborhood. The robbers wore dark sweatshirts and ski masks, and carried backpacks or duffel bags. One night, police officers saw three men approach a store. They wore dark clothing, with hoods pulled down over their faces. One was carrying a backpack. One of the men attempted to enter the store while the other two flanked the building and watched the street. They found the doors locked and fled. As police officers pursued the men, two jumped into a running green Buick Skylark driven by yet a fourth person. The third would-be robber fled on foot.

The men in the car led police on a high-speed chase, but police soon arrested them and confiscated the car, which turned out to be registered to Welch. Other officers went in search of the man who had not made it into the getaway car. They discovered Welch hiding under a car near the store. Welch first told them he had been carjacked, but he later said he had been " unwittingly duped into being the getaway driver." State v. Welch, 800 N.W.2d 957, 2011 WI App. 99, ¶ 25, 334 Wis.2d 806 (Wis. App. 2011) (Table). Police searched the car and discovered a backpack, two ski masks, two dark hooded sweatshirts, and a pair of leather gloves.

Welch eventually was charged with sixteen crimes stemming from the string of robberies. See Welch, 800 N.W.2d 957, 2011 WI App. 99, ¶ 2. The charges were severed into two trials. In his first trial, a jury found him guilty of all four counts. In the second trial--the one relevant to this appeal--a jury found him guilty of eight counts of armed robbery. The second trial took nine days. The jury heard testimony from three of Welch's accomplices, five other witnesses who testified about details that linked him to the robberies, two forensic experts, twelve police officers, and twenty robbery victims. The accomplices identified Welch as a participant in five of the robberies. They also testified that Welch had bragged that he had committed 46 robberies, bought his car with robbery proceeds, and called it " the Moneymaker" because he used it to escape robberies.

A number of witnesses testified about how the robberies of their respective businesses occurred, including that they were committed by two black men--one of whom matched Welch's height and weight--wearing ski masks and hoodies, and carrying duffel bags or backpacks. ...


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