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Hicks v. Hepp

United States Court of Appeals, Seventh Circuit

September 7, 2017

Douglas G. Hicks, Petitioner-Appellant,
v.
Randall Hepp, Respondent-Appellee.

          Argued December 9, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-cv-01325 - William E. Duffin, Magistrate Judge.

          Before Williams and Hamilton, Circuit Judges, and Chang, District Judge. [*]

          Williams, Circuit Judge.

         Douglas Hicks admitted to sexually molesting his victim, a former step-son, during a recorded phone call from a police station. During the call, and before the confession, the victim repeatedly threatened to harm Hicks and to tell Hicks's other minor son about the abuse. Ultimately, Hicks was charged with sexually molesting the victim and tried by a jury At trial, Hicks's counsel played the entire 43-minute recorded conversation to the jury Later, during the state's rebuttal argument, the prosecutor referred to an earlier case in which Hicks had pleaded guilty after being accused of engaging in similar conduct. He asked the jury if it was "fair" that Hicks had been permitted to "plea bargain []" down his felony charges to misdemeanors and receive probation as punishment. And then, he asked the jury "Is that what should have happened here or should we deal with this case?" Hicks's trial counsel did not object to this clearly improper argument.

         The jury returned a verdict of guilty and Hicks was sentenced to 25 years' imprisonment. After a failed collateral challenge to his conviction in state court, he filed a petition for habeas relief pursuant to 28 U.S.C. § 2254 in federal court. The district court denied relief, and Hicks now appeals. On appeal he contends that the state court erred when it found that his counsel's failure to move to suppress the recorded conversations, in which he confessed to the crime, did not constitute ineffective assistance of counsel. While we find that the state court unreasonably determined that Hicks's trial counsel was credible when he testified that Hicks told him that he did not feel threatened during the call, we nonetheless find that Hicks did not suffer prejudice from the tape's admission, because the other evidence of his guilt was sufficient to sustain his conviction.

         Hicks also alleges that it was unreasonable for the state court to conclude that his counsel's decision not to object during rebuttal was a strategic trial decision. We agree with Hicks that these statements were improper, and are very troubled by the state court's finding on the issue. Nonetheless, because Hicks did not fairly present this claim to the Wisconsin Supreme Court in his petition for review, we find that he has procedurally defaulted on this claim for relief. As a consequence, we cannot reach the merits of this claim and affirm the district court's denial of habeas relief.

         I. BACKGROUND

         In April 2005, a 22 year-old-man named E.J. reported to police that he had been sexually molested as a child by his former stepfather, Douglas Hicks ("Hicks"). E.J. stated that the sexual abuse began in 1996 when he was only 11 years old and continued until 1999. In total, there were 100 to 120 separate incidents of sexual abuse. Almost a year after first reporting the abuse to police, E.J. worked with Investigator Dale Janus of the Oconto County Sheriff's Department to obtain a confession from Hicks. At Investigator Janus's suggestion, E.J. agreed to a one-party consent taped phone call.

         On February 6, 2006, E.J. telephoned Hicks from the Oconto County Sheriff's station. Before placing the call, Investigator Janus provided E.J. with guidance on how to get Hicks to make an incriminating statement. While Investigator Janus told E.J. to take a softer approach with Hicks on the phone, he also stated that "there wasn't anything he could really say wrong. Whatever [E.J.] felt he needed to say was okay." R. 17-15 at 26.[1] After providing these instructions, Investigator Janus both listened to and recorded the conversation.

         Hicks answered the phone while he was driving a company car with a new employee that he was training. The call lasted 43 minutes and was the first time that E.J. had confronted Hicks about the abuse. During the call, E.J. made various attempts to get Hicks to admit to the abuse. These attempts included making a number of threats including: threats of death or bodily injury general threats regarding negative consequences, threats to go to the police, and threats of continued harassment. While Hicks tried to end the call a number of times, he never did. And, while he generally denied the abuse, he also asked if they could discuss the issue in person, and made other statements that suggested E.J.'s allegations were true.

         Towards the end of the call, E.J. changed his approach and made a reference to Hicks's minor son, A.H., who was E.J.'s step brother-born to Hicks and Wendy Lambert, E.J.'s mother. Although no longer married, Hicks and Lambert shared custody of A.H. During the call, E.J. threatened to tell A.H. about the abuse he endured at Hicks's hands. After making this threat, the following exchange occurred:

E.J.: All you need to do is say you're sorry. Say you're sorry and we can all go back to this being like normal and you will never hear from me again and there'll never be any more problems like this, and I'll play ball with it and keep things the way you want them whenever another investigation like this pops up because I'm sure there's you know more children that you want to molest.
Hicks: E.J., I am sorry.
E.J.: You're sorry for what, come on, go forward, you're sorry for what.
Hicks: Just, you just told me to say it, I'm sorry.
E.J.: No say I'm sorry for sexually molesting you. This isn't going to end until you reach that point. We got the sorry part out now we just need to end the sexually molesting me part.
Hicks: That's going to keep you from uh, trying to upend, upend on [my son].
E.J.: Yes it will if you want to see your child again, if you don't want him to ever know about this you're going to say it. You're going to say E.J. I'm sorry for sexually molesting you.
Hicks: E.J., I'm sorry for molesting you.

R. 23-1 at 20-21.

         Several weeks after the recorded conversation, Hicks met with Investigator Janus. During that meeting, Hicks denied ever sexually molesting E.J. When told of the recording, Hicks stated that he had felt threatened by E.J. and only admitted to abusing E.J. because he felt threatened. In June 2016, Hicks was charged with the repeated sexual assault of E.J., in violation of Wis.Stat. § 948.025(1).

         A. Pretrial Proceedings

         Hicks retained Attorneys K. Richard Wells and Gerald Boyle, members of the same firm, as trial counsel. Before trial, the government asked the court to hold a Miranda-Goodchild hearing to determine the admissibility of Hicks's recorded statements.[2] Hicks's counsel did not object to the hearing. Rather, Wells stated on the record that he agreed with the procedure "[a]lthough we're not really challenging the statements and its (sic) voluntariness." R. 17-12 at 4. Nonetheless, Wells believed that they "need[ed] to make a record about it." Id.

         The court held the Miranda-Goodchild hearing. During the hearing, Investigator Janus testified about his investigation and the recording he made of E.J. and Hicks's conversation. Wells neither offered evidence nor made any argument on Hicks's behalf. At the end of the hearing, the court concluded that under the totality of the circumstances, Hicks's statements were voluntary and therefore, admissible at trial.

         B. Hicks's Criminal Trial

         In March 2007, Hicks, represented by Wells and Boyle, was tried before a jury At trial, the government's first two witnesses were brothers who had also been molested by Hicks as children. The court admitted their testimony for the sole purpose of establishing Hicks's motive. Each brother detailed how the abuse occurred. Though Hicks was prosecuted on felony charges for these sexual assaults, that trial resulted in a hung jury. Ultimately Hicks entered an Alford[3] plea to two reduced misdemeanor charges related to the charged conduct: the intent to contribute to the delinquency of a minor and exposing one's genitals to a child. As a result, Hicks was sentenced to probation, which was eventually revoked for reasons not in the record, and Hicks served six months in jail.

         The government also called E.J. to testify. He gave the jury a graphic account of the repeated abuse, providing vivid detail about three specific incidents. These details included where in the house the abuse occurred, who else was present in the home, what movies he was watching prior to the abuse, and the nature of the sexual acts that Hicks performed on him and those he was forced to perform on Hicks. Although he only provided this level of detail with regards to three incidents, he testified that there were approximately 100 to 120 separate incidents of abuse over a three-year period, occurring on an almost weekly basis.

         On direct examination, E.J. also testified about the recorded telephone conversation he had with Hicks. He acknowledged that the call was an angry one, in which he thought the best way to get Hicks to admit to the abuse was to "push him." R. 17-14 at 12. He also acknowledged making threats on the call. Id. Before cross examination of E.J., the defense played the entirety of the 43-minute recorded conversation for the purpose of "completeness." Later, the prosecution called Investigator Janus, who testified about and recounted portions of the recorded conversation from the stand.

         Lambert, Hicks's ex-wife, also testified for the prosecution. She first learned about the abuse in April 2005 around the time that E.J. reported it to the police. Almost a year later, in February 2006, she confronted Hicks as part of Investigator Janus's investigation. After she confronted him, Hicks admitted to abusing E.J. But, he also provided an excuse: his actions were the result of the sexual abuse he had both experienced and witnessed as a child. After this conversation, Hicks called Lambert two more times to apologize and to attempt to speak to E.J. in hopes that he might drop the allegations.

         After the prosecution rested, Hicks testified in his own defense. He addressed the brothers' statements that he had sexually assaulted them when they were children. While he admitted that he had been charged with two felonies as a result of their allegations, he reiterated that the felony trial had ended in a hung jury Because he had wanted to vindicate his name, Hicks reluctantly entered into the Alford plea.

         Hicks addressed the recording in which he confessed to sexually molesting E.J. He stated that he found the conversation "shocking, " but once E.J. threatened to take his allegations to his son A.H., "that was it. I told him what he wanted to hear. I asked him what he wanted to hear, ...


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