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Moseley v. Kemper

United States Court of Appeals, Seventh Circuit

June 27, 2017

Timothy D. Moseley, Petitioner-Appellant,
v.
Paul S. Kemper, Warden, Respondent-Appellee.

          Argued April 13, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-CV-0035 - William C. Griesbach, Chief Judge.

          Before POSNER, Manion, and Kanne, Circuit Judges.

          Kanne, Circuit Judge.

         Timothy Moseley was convicted on three counts of possessing nude photos of T.H. that were taken without her consent. Prior to trial, Moseley moved to have the court review T.H.'s mental-health records in camera. At issue here is whether the Wisconsin appellate court's decision denying that motion is "contrary to, or involved an unreasonable application of" Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

          Because the Wisconsin appellate court's decision is not substantially different from Supreme Court precedent and because the court did not unreasonably apply that precedent to Moseley's case, we reject those arguments.

         I. Background

         Milwaukee police officers arrested Moseley at his house after M.K. accused him of domestic violence. While searching Moseley's apartment, officers found handcuffs, rope, and other items associated with sexual bondage and seized Moseley's computer, camera, external hard drive, and CDs. The Milwaukee Police Department sent the electronic devices to the Computer Crimes Unit at the Department of Justice. When DOJ detectives searched the devices, they discovered several nude photos of M.K. and several nude photos and videos of another woman, T.H.

         T.H. worked with Moseley at a U.S. Marshal's office in Wyoming. In her statement to the police, T.H. alleged that Moseley forced her into a sexual relationship by threatening her job. Her statement also chronicled his abusive behavior throughout their relationship. For instance, she claimed that she once passed out after drinking coffee that Moseley had given her. She said that, while she was drifting in and out of consciousness, someone handcuffed her, blindfolded her, and took off her clothes. Investigators found photos of that incident on Moseley's computer, as well as other photos of T.H. that were allegedly taken without her consent.

         The state charged Moseley with eight counts of possessing nude photos of T.H. taken without her consent. Wis.Stat. § 942.09(2)(am)3. Moseley's primary defense was that he and T.H. had been in an ongoing, consensual relationship and that T.H. had consented to the photos.

         Before trial, Moseley moved to have the court review T.H.'s mental-health records in camera. According to Moseley, T.H. had memory problems. He argued that T.H.'s records contained evidence related to her memory that he could use to impeach her credibility at trial. He also suggested that the records might contain statements by T.H. that indicate their relationship was consensual. The trial court denied the motion, and the jury convicted Moseley on three of the eight counts.

         Moseley appealed his conviction. The Wisconsin appellate court affirmed the trial court's denial of in camera review, holding that Moseley had not shown "a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative." (R. 10-4 at 8-9 (quoting State v. Green, 646 N.W.2d 298, 310 (Wis. 2002)).) According to the court, the information was immaterial: even if T.H. had consented to some part of her relationship with Moseley, that was irrelevant to whether she had consented to the taking of the photos at issue. The court also concluded that the information was cumulative: T.H.'s memory issues were on clear display to the jury because she answered "many questions with 'I don't recall.'" (R. 10-4 at 9.) The Wisconsin Supreme Court denied Moseley's petition for review.

         Moseley then filed a petition for a writ of habeas corpus in federal district court. He argued that the Wisconsin appellate court's decision was contrary to clearly established Supreme Court precedent because the court applied Wiscon- sin's standard for obtaining in camera review from Green instead of the Supreme Court's standard from Pennsylvania v. Ritchie,480 U.S. 39, 58 n.15 (1987). In the alternative, he argued that, even if the Wisconsin standard from Green is not contrary to Ritchie, the Wisconsin appellate court unreasonably applied the standard to his case. The district court denied the petition but ...


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