Williams, Clyde B. v. Bartow, Byran

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-4736

CLYDE B. WILLIAMS,

Petitioner-Appellant,

v.

BYRAN BARTOW,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 C 89—William C. Griesbach, Judge.

____________

ARGUED OCTOBER 19, 2006—DECIDED MARCH 20, 2007

____________

Before RIPPLE, MANION and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Petitioner Clyde Williams was

convicted in the state courts of Wisconsin of three counts

of first-degree sexual assault of a child. Following an

unsuccessful motion for a new trial, he appealed his

conviction to the Court of Appeals of Wisconsin. That

court denied relief. See State v. Williams, 677 N.W.2d 691

(Wis. Ct. App. 2004), review denied, 679 N.W.2d 546 (Wis.

2004). He then filed a petition for habeas corpus in the

United States District Court for the Eastern District of

Wisconsin. See 28 U.S.C. § 2254. He alleged the same

grounds for relief that he had presented to the Wisconsin

2 No. 05-4736

appellate court and also added several others. The district

court denied relief, but granted a certificate of appealability

with respect to several of Mr. Williams’ claims, includ-

ing the three that he raises in this court. See R.34, R.38. In

this appeal, Mr. Williams asks us to review only those

claims adjudicated on their merits in state court. For the

reasons set forth in the following opinion, we affirm the

district court’s denial of Mr. Williams’ petition.

I

BACKGROUND

A. Facts

In 1990, two sisters, Annitra J. and Okima J., then five

and six years old, respectively, told police that Mr. Wil-

liams had sexually assaulted them in the restroom of a

public park. After some investigation, the prosecutor

decided not to proceed because, at the time, there was

an inadequate evidentiary basis.

Six years later, in 1996, Tyfonia S., also six years old,

alleged that Mr. Williams had fondled her. She was with

him on a day when he was purchasing a car from her

mother’s boyfriend, Thomas White. White was caring

for Tyfonia and her siblings. The children went with

White and Mr. Williams to Mr. Williams’ mother’s home

to complete the transaction, and the assault apparently

occurred in an elevator when Tyfonia was alone with

Mr. Williams. Based on this incident, the State charged

Mr. Williams with first-degree sexual assault of a child.

In 2001, after a series of trial-ending errors, a success-

ful appeal, multiple re-trials and the addition of new

No. 05-4736 3

charges, Mr. Williams was convicted on counts arising out

of both the 1990 and the 1996 incidents.

B. The Wisconsin Proceedings

1.

During pretrial proceedings for Mr. Williams’ first trial

on a charge relating only to sexual assault of Tyfonia, the

State sought a ruling allowing it to introduce the earlier

incident involving Annitra and Okima as evidence of

other crimes. The trial court declined to rule and, instead,

instructed the State to raise the issue at trial, outside of the

jury’s presence. Mr. Williams’ counsel then sought to

introduce evidence of “the prior sexual experience” of

Tyfonia, the six-year-old victim, “that relate[d] to her . . .

fabricating this incident.” Williams, 677 N.W.2d at 694

(quoting defense counsel) (omission in original). The

court instructed counsel that a hearing would be neces-

sary before any questions concerning the sexual history of

any witness could be asked.

During the course of this first trial, the State called Angie

R., Tyfonia’s mother, who testified that Tyfonia said that

Mr. Williams had penetrated her with his finger while

they were in an elevator. On cross-examination, defense

counsel asked Angie whether she was aware that her own

boyfriend, White, with whom Tyfonia was sometimes

left alone, “had sexually molested two children in the

past.” R.18, Tr.1 at 90. The State objected and the court

considered the issue outside the presence of the jury. In

defense of his question, Mr. Williams’ attorney stated

that he did not believe that he was bound by the court’s

earlier directive that a hearing would be necessary to

resolve questions of admissibility relating to the sexual

4 No. 05-4736

history of any witness because the question did not involve

Tyfonia’s sexual experiences. The State requested a mis-

trial. In its view, the question was improper and highly

prejudicial in light of the court’s earlier ruling. After

hearing arguments, the court asked Mr. Williams’ counsel

about the factual basis for the question posed to Angie.

Following some discussion with counsel and with Mr.

Williams himself, the court determined that there was no

firm factual basis1 and that, in any event, the question was

improper because the acts implied in the question (sexual

intercourse with “post-menstrual” teenagers), although

“reprehensible,” were so dissimilar from the sexual

assault of a six year-old as to render the evidence irrelevant

even had it been suggested with a good faith basis in fact.

Id. at 97. In the colloquy with the judge concerning the

question, defense counsel further admitted that he sought

to introduce specific acts testimony to prove action in

conformity therewith on the part of White, but asserted

that it was permissible because White was not the defen-

dant. Id. at 92-94. The court disagreed and, after consider-

ing counsels’ arguments, stated that it saw no other

alternative to a mistrial because the harm done before the

jury was irremediable and “of such enormity in terms of

the rules of evidence and its effect in the case that I don’t

think it’s appropriate to continue with this case before this

jury.” Id. at 103.

1

See R.18, Tr.1 at 93-100. Counsel originally stated that he could

present evidence that White had fathered children to two

fourteen year-old mothers in the past. Id. at 94. Upon examina-

tion by the court, it became clear that defense counsel had no

such evidence; instead, it appeared that some eighteen years

earlier, White had fathered the child of the defendant’s

twenty year-old sister.

No. 05-4736 5

Mr. Williams then moved to dismiss the information

based on the mistrial. The court denied that motion,

concluding that the question asked had been “provocative,

prejudicial, immaterial and incendiary,” Williams, 677

N.W.2d at 695, and gave the court no reasonable alterna-

tive but to declare a mistrial. These rulings form the basis

of the double jeopardy argument made in this appeal.

2.

In July 1997, a second trial began, again limited to

charges arising out of the assault on Tyfonia. In addition to

Tyfonia’s testimony, the State called both Annitra and

Okima as part of its effort to establish motive. At the

conclusion of this trial, Mr. Williams was convicted of one

count of first-degree sexual assault of a child and sentenced

to forty years’ imprisonment. Mr. Williams moved for a

new trial on the basis of ineffective assistance of counsel.

His motion was granted by the trial court. The State filed

an untimely appeal, which was dismissed by the Court

of Appeals of Wisconsin in August 1999.

3.

The pre-trial proceedings in Mr. Williams’ third trial for

the sexual assault of Tyfonia then began. In October 1999,

Mr. Williams orally and in writing demanded a speedy

trial. His trial was set to commence on January 4, 2000, but

was twice delayed because Tyfonia had moved out of

state, and the prosecution had difficulty locating her. Trial

was then set for June 14, 2000, but Mr. Williams requested

a delay so that his new counsel could prepare. Trial was

rescheduled for July 10, 2000; in an unrecorded pretrial

6 No. 05-4736

conference,2 the State again requested a postponement

because Annitra and Okima, set to testify as to Mr. Wil-

liams’ other crimes, had been unable to travel from Texas

to the trial. Mr. Williams’ counsel apparently believed the

adjournment was in Mr. Williams’ best interest, primarily

because the State apparently had indicated, upon failure

of plea negotiations, that it intended to file an information

regarding earlier incidents. Mr. Williams’ counsel appar-

ently hoped that some intervening event might prevent

the State from adding those charges.

Shortly thereafter, the State did file an information that

included additional charges based on the 1990 incident

involving Annitra and Okima. These allegations were

consolidated for trial with the allegations concerning

Tyfonia. Mr. Williams requested that trial be postponed

to allow him an opportunity to investigate the newly

added charges. In November, the trial was again postponed

with Mr. Williams’ consent and rescheduled to February

2001. However, due to ensuing court conflicts, Mr. Wil-

liams’ request for juvenile court records of Annitra and

Okima and the scholastic schedules of the child witnesses,

the trial was pushed back to June 18, 2001.

Shortly before trial, Mr. Williams moved to dismiss based

on prosecutorial vindictiveness. He argued that the addi-

tional charges were in retaliation for his earlier success-

ful appeal. The court denied his motion; it concluded that

the testimony of Annitra and Okima in the second trial

provided an adequate basis to explain the prosecutor’s

decision to pursue charges that were previously thought

2

The trial judge summarized the conference at a July 10, 2000

teleconference with both parties. R.19, Tr.15 at 1-5.

No. 05-4736 7

unprovable. The next day, the State again requested an

adjournment because of the unavailability of witnesses.

The third trial eventually began July 16, 2001. It ended

in an unopposed mistrial because of an improper remark

by the prosecution in the presence of the jury. R.20, Tr.30

at 55.

4.

The fourth trial began on July 17, 2001. Mr. Williams

was convicted of all three counts of first-degree sexual

assault of a child. He then filed a motion for a new trial.

The trial court denied the motion with respect to all counts,

but determined that the sentence was in excess of the

statutory maximum in effect at the time in Wisconsin.

Mr. Williams took an appeal to the Court of Appeals of

Wisconsin. That court, reaching the merits of his submis-

sions, affirmed the judgment of the trial court. See Williams,

677 N.W.2d 691. A petition for review was denied in the

Supreme Court of Wisconsin. See Williams, 679 N.W.2d 546.

We shall set forth the pertinent parts of the holding of

the Court of Appeals in the discussion that follows.

C. Habeas Corpus Proceedings in the District Court

Mr. Williams then filed this habeas petition in the Eastern

District of Wisconsin. Undertaking the screening function

under Rule 4 of the Rules Governing Section 2254 Proceedings

in the United States District Courts, the district court allowed

him to proceed on six claims, including that his prosecu-

tion was vindictive and violated the Double Jeopardy

Clause and that he was denied his right to a speedy trial.

The court examined the claims under the standard of

8 No. 05-4736

review provided in the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and denied the

writ.3 We shall set forth the holding of the district court

with respect to each of the issues now raised in this

court in the discussion that follows.

II

DISCUSSION

A. Standard of Review

In this federal habeas corpus case, alleging constitu-

tional error in a state court criminal conviction, we re-

view de novo the district court’s decision denying the

writ. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006),

cert. denied, 75 U.S.L.W. 3438 (U.S. Feb. 20, 2007) (No. 06-

8943). We review issues of fact resolved by the district

court for clear error. Adams v. Bertrand, 453 F.3d 428, 432

(7th Cir. 2006). In doing so, we, like the district court, must

evaluate the decision of the last state court to have adjudi-

cated the petitioner’s claim on the merits, according to the

standards set forth in AEDPA, 28 U.S.C. § 2254. See Simelton

v. Frank, 446 F.3d 666, 669-70 (7th Cir. 2006), cert. denied, 75

U.S.L.W. 3168 (U.S. Oct. 2, 2006) (No. 05-11643). In this

case, the operative decision is that of the Court of Appeals

of Wisconsin, State v. Williams, 677 N.W.2d 691 (Wis. Ct.

App. 2004).

3

No certificate of appealability was granted as to Mr. Williams’

Ex Post Facto claim. In addition to the three claims presented in

this appeal, a certificate was granted on Mr. Williams’ ineffective

assistance of appellate counsel and due process claims, but

he has not pressed those arguments before this court. See R.38

at 2.

No. 05-4736 9

Under AEDPA, when a state court actually has adjudi-

cated a petitioner’s claims on their merits, a federal habeas

court may grant relief only when the state court’s adjudica-

tion of the claim “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d). A decision is

contrary to clearly established law if the state court applied

a rule that contradicted the governing law as set forth in

Supreme Court cases, or if, being confronted with a set of

facts materially indistinguishable from those examined by

Supreme Court precedent, the state court arrived at an

opposite result. Williams v. Taylor, 529 U.S. 362, 405-06

(2000). Alternately, a state court decision involves an

unreasonable application of clearly established law if the

state court identifies the correct rule and unreasonably

applies it to the facts, or if the state court unreasonably

extends, or refuses to extend, a rule of law. Id. at 407-08. In

determining whether Supreme Court precedent has been

applied unreasonably, we do not ask simply whether the

state court’s application was erroneous, or even clearly

erroneous, but whether the decision was “objectively

unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003);

Badelle v. Correll, 452 F.3d 648, 654 (7th Cir. 2006) (citing

Williams, 529 U.S. at 410). To draw the line between rea-

sonable errors, which will stand in federal habeas review,

and unreasonable ones, upon which we shall grant the

writ, we must distinguish between those decisions “which

comport with recognized conventions of legal reasoning,”

Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003), and those

which “l[ie] well outside the boundaries of permissible

10 No. 05-4736

differences of opinion,” Hardaway v. Young, 302 F.3d 757,

762 (7th Cir. 2002).

In this deferential and limited review, state court factual

findings are presumed correct. A habeas petitioner bears

the burden of rebutting that presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). Each of Mr.

Williams’ claims actually was adjudicated on its merits in

the Court of Appeals of Wisconsin, and, therefore, we are

bound by the above AEDPA standards with respect to

all of his claims.

B. Double Jeopardy

Mr. Williams contends that the declaration of a mistrial

in his first trial was inappropriate under the circum-

stances and saved the prosecution from the “disastrous”

first trial. Appellant’s Br. at 11. The result, he claims, was

that he was placed twice in jeopardy for offenses arising

out of the 1996 assault on Tyfonia.

1.

The Court of Appeals of Wisconsin held that the trial

judge was correct in concluding that manifest necessity

supported the mistrial. Williams, 677 N.W.2d at 697-700.

The court’s decision carefully traced the basic principles of

double jeopardy established by the holdings of the Su-

preme Court of the United States. It noted that the state has

the burden of establishing “manifest necessity” for any

mistrial ordered over the objection of a defendant. Id. at

697. It recognized as well that, in assessing the “necessity”

of granting a mistrial in the face of a prejudicial statement

of counsel, great respect was owed to the estimation of the

No. 05-4736 11

trial judge about the extent of the prejudice caused by the

utterance. Id. at 697-98. Turning to the circumstances of

Mr. Williams’ case, it noted that the risk of prejudice here

was of the same kind as that at stake in Arizona v. Washing-

ton, 434 U.S. 497 (1978) (upholding the decision to grant a

mistrial in response to a prejudicial remark made by

defense counsel). Turning to the record, it noted that the

statement had been made after the trial judge had di-

rected that such inquiries were to be made only after

obtaining clearance from the judge. The trial judge also

carefully questioned counsel and found that the question

to the witness lacked a firm basis in fact. The court was

of the view that the trial court had then “entertained

Williams’ suggestion that the court ‘try to save the trial’ but

rejected it stating that ‘the State has been very seriously

harmed. And I don’t know any alternative but declare a

mistrial.’ ” Williams, 677 N.W.2d at 700. The appellate court

concluded:

The record, therefore, persuades us that the trial judge

acted responsibly and deliberately and accorded

careful consideration to Williams’ interest in having

the trial concluded in a single proceeding. Since the

trial judge exercised “sound discretion” in handling the

sensitive problem of possible juror bias created by the

improper question by Williams’ counsel, the mistrial

order is supported by the “high degree” of necessity

that is required in a case of this kind.

Id.

2.

The district court considered this contention in adjudicat-

ing the present § 2254 petition. It determined that the

12 No. 05-4736

Wisconsin appellate court had considered thoroughly the

relevant issues and had applied correctly Supreme Court

precedent, particularly Arizona v. Washington. R.34 at 4. The

court then concluded that, on the facts, the decision was

neither contrary to, nor an unreasonable application of,

Supreme Court precedent and denied relief.

3.

The Fifth Amendment’s Double Jeopardy Clause, applied

to the states by the Fourteenth Amendment, guarantees

that no one shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V.

The clause unequivocally protects a defendant from retrial

for the same offense after an acquittal. Washington, 434 U.S.

at 503. Moreover, because jeopardy attaches prior to

judgment, the protection also reaches a criminal defen-

dant’s “valued right to have his trial completed by a

particular tribunal,” and to be spared from the burdens of

multiple trials, even if those trials do not finally resolve

the merits of the charges. Id. at 503.

At times, this right is “subordinate to the public interest

in affording the prosecutor one full and fair opportunity

to present his evidence to an impartial jury.” Id. at 505.

Generally, “the prosecutor must shoulder the burden of

justifying the mistrial if he is to avoid the double jeopardy

bar. His burden is a heavy one. The prosecutor must

demonstrate ‘manifest necessity’ for any mistrial declared

over the objection of the defendant.” Id. The Supreme Court

has noted that it is not a literal necessity that must

be shown, but necessity of a “high degree.” Id. at 506.

As a general rule, a reviewing court is charged with

determining whether the trial court’s decision that a

No. 05-4736 13

mistrial was justified by manifest necessity was an abuse

of discretion. See United States v. Vaiseta, 333 F.3d 815, 818

(7th Cir. 2003). However, within this general standard,

varying degrees of scrutiny are applied depending on the

nature of the precipitating event. See Washington, 434 U.S.

at 507-09. Different trial situations are amenable to different

degrees of appellate scrutiny. Indeed, in Washington, the

Court pointedly held that, when a mistrial is granted in

response to an improper remark by defense counsel, the

decision of the trial court was entitled to special deference.

Id. at 510. This approach was necessary because “[t]here are

compelling institutional considerations militating in favor

of appellate deference to the trial judge’s evaluation of the

significance of possible juror bias.” Id. at 513; see also id. at

516 (“Neither party has a right to have his case decided by

a jury which may be tainted by bias; in these circumstances,

the public’s interest in fair trials designed to end in just

judgements must prevail over the defendant’s valued right

to have his trial concluded before the first jury impaneled.”

(internal quotation marks omitted)). Nevertheless, despite

that high degree of deference, a reviewing court still must

satisfy itself that the trial court exercised its “sound

discretion” and acted “responsibly and deliberately” in

declaring a mistrial. Id. at 516.

We turn, therefore, to the decision of the Court of Ap-

peals of Wisconsin to determine whether its evaluation of

Mr. Williams’ double jeopardy claim is contrary to or an

unreasonable application of the above standard. In Mr.

Williams’ case, a mistrial was declared following his

counsel’s question to a State witness regarding potential

criminal sexual misconduct of another witness. Williams,

677 N.W.2d at 694. In evaluating Mr. Williams’ claim, the

State applied the standards set forth in Washington. Because

14 No. 05-4736

it neither applied an improper legal standard, nor reached

a conclusion opposite to the Supreme Court on materially

indistinguishable facts, the decision of the Court of Ap-

peals of Wisconsin is not “contrary to” Supreme Court

precedent under Williams v. Taylor, 529 U.S. at 405-06.

We therefore must consider whether the Wisconsin

appellate court’s application of the law to facts of the

instant case was unreasonable. In concluding that the

mistrial was within the discretion of the trial court, the

Wisconsin appellate court focused on the improper nature

of the question, given the trial court’s earlier instruction

that evidentiary questions involving the sexual history

of any witness were to be aired outside the hearing of the

jury, the general irrelevance of the question posed to the

case and its lack of a firm basis in fact. Williams, 677

N.W.2d at 699. The court also weighed the interest of the

defendant in enduring retrial against the highly prejudicial

effect of the question. The court noted that the parties had

a “full opportunity to explain their positions,” id. at 699-

700, and that the trial judge acted “responsibly and de-

liberately,” id. at 700, in concluding that the prejudice

could not be overcome.

We conclude that the decision of the Court of Appeals of

Wisconsin was not an unreasonable application of clearly

established Supreme Court law. It recognized that Washing-

ton requires that an appellate tribunal give a broad range of

discretion to a trial judge in estimating the degree of juror

bias precipitated by the remark of counsel. The Wisconsin

appellate tribunal reasonably decided that there was no

material distinction between the situation confronted in

Washington, in which a prejudicial remark was made by the

defense attorney in opening arguments, and the situation

here, in which a question of similar prejudicial effect is

improperly put to a witness.

No. 05-4736 15

Consequently, habeas relief was properly denied on this

basis.

C. Vindictive Prosecution

Mr. Williams next submits that the addition of charges

relating to the 1990 incident involving Annitra and Okima,

after he had gained a new trial on the original charge

and declined to enter into a plea agreement relating to the

originally charged 1996 offenses, amounts to vindictive

prosecution.

1.

The Court of Appeals of Wisconsin began its analysis of

this issue by acknowledging that the Supreme Court of

the United States had recognized in Blackledge v. Perry, 417

U.S. 21, 25-29 (1974), and Thigpen v. Roberts, 468 U.S. 27, 30-

33 (1984), that a presumption of vindictiveness arises

when, following a defendant’s successful appeal, greater

punishment is sought by a prosecutor. The state appel-

late court was quick to point out, however, that, in both of

those cases, the prosecutor had increased the gravity of

the charge faced by the defendant for the same conduct as

alleged in the original charge. By contrast, in this case, the

prosecutor had decided to charge Mr. Williams with an

entirely different crime, based on entirely different facts,

against an entirely different victim, and having occurred

in an entirely different time period six years earlier.

Relying on a decision of the United States Court of Appeals

for the Eleventh Circuit in Humphrey v. United States, 888

F.2d 1546, 1549 (11th Cir. 1989), the Wisconsin court took

the view that this distinction is a valid one. Williams, 677

16 No. 05-4736

N.W.2d at 703. It ruled that, while the situation in

Blackledge and Thigpen raised the distinct possibility that a

defendant would be chilled from the exercise of his ap-

pellate rights if he believed that a successful appeal

would result in a second trial on more serious charges for

the same conduct, the same concern was not present

when the prosecutor brings charges based on other con-

duct. In this latter situation, the Wisconsin court con-

tinued, it is not the defendant’s appeal that creates the

opportunity to bring the other charges; the prosecutor may

proceed on the separate charges whether the defendant

takes an appeal in the original case or not. See id. at 704.

Moreover, added the court, in this case, the prosecutor

had acquired new reasons for bringing the charges based

on the earlier incident—the testimony of the two alleged

victims from the first trial. Although the prosecutor had

had the police reports with the statements of the two

young victims for six years, now he had their testimonial

account under oath and subject to cross-examination.

Under these circumstances, said the Wisconsin court, the

decision to charge Mr. Williams with the earlier assaults

is characterized most appropriately as a new approach by

a new prosecutor. See id. The court also noted that the

fact that the prosecutor had threatened to add these

charges if Mr. Williams did not plead guilty to the original

charge did not amount to vindictiveness. See id. at 705;

Bordenkircher v. Hayes, 434 U.S. 357, 360-65 (1978) (holding

that the Due Process Clause is not violated when a pros-

ecutor carries out a threat to reindict a defendant on

more serious charges to which he is subject following

unsuccessful plea negotiations).

No. 05-4736 17

2.

On habeas review, the district court held that the Wis-

consin court had interpreted reasonably the case law of the

Supreme Court of the United States. The district court

concluded that the state court had read correctly Su-

preme Court precedent to find a presumption of vindictive-

ness when a prosecutor brings more serious charges

against a defendant based on the same underlying conduct.

The district court also agreed that these cases were inap-

plicable where, as here, the new charges related to different

underlying conduct. R.34 at 5-6 (citing Humphrey, 888 F.2d

at 1549).

3.

a.

The Due Process Clause of the Fourteenth Amendment

has been interpreted to prohibit prosecutions under

circumstances suggesting a “realistic likelihood of ‘vindic-

tiveness’ ” on the part of the prosecutor. Blackledge, 417 U.S.

at 27. In Blackledge, and again in Thigpen, the Supreme

Court established that a presumption of vindictiveness

follows certain prosecutorial decisions.4 The factual cir-

cumstances of both of these cases involved a defendant

who had been convicted on various misdemeanor counts,

succeeded in appealing his conviction, and, on retrial, the

state prosecutor in each chose to prosecute the same under-

4

Mr. Williams does not argue that he has demonstrated actual

vindictiveness; he contends exclusively that he is entitled to a

presumption of vindictiveness under the circumstances of his

prosecution following a successful appeal.

18 No. 05-4736

lying conduct under a felony charge. The Supreme Court

characterized the situations as posing a “realistic likeli-

hood of vindictiveness” because “the prosecutor, who

has a considerable stake in discouraging convicted mis-

demeanants from appealing and thus obtaining a trial de

novo [can] make retaliatory use of his power to up the

ante.” Thigpen, 468 U.S. at 30 (internal quotation marks

omitted) (italics in original).

Neither the Supreme Court nor this court has addressed

directly the applicability of Thigpen and Blackledge to

situations where the defendant is charged, post-appeal, on

the basis of different criminal conduct, as opposed to a

heightened charge on the basis of the same underlying

conduct. As both the state court of appeals and the dis-

trict court noted, the Eleventh Circuit has ruled that,

because Blackledge and Thigpen do not address prosecutorial

action involving other criminal conduct, the presumption of

vindictiveness invoked by the Supreme Court in those

cases is not applicable. Therefore, when the prosecutorial

conduct involves other criminal conduct, the defendant

must demonstrate actual vindictiveness rather than relying

on the presumption recognized in Blackledge and Thigpen.

See Humphrey, 888 F.2d at 1549.5 The Ninth Circuit has

reached the same conclusion. In United States v. Martinez,

785 F.2d 663 (9th Cir. 1986), that court said:

If the additional charge “aris[es] out of the same

nucleus of operative facts as the original charge,” a

5

Humphrey v. United States, 888 F.2d 1546 (11th Cir. 1989),

evaluated a claim by a defendant that the state issued an

indictment charging him with other crimes based on other

conduct in retaliation for an on-going direct appeal and a

collateral attack on his first conviction. Id. at 1549.

No. 05-4736 19

presumption of vindictiveness is raised. If, however,

the second charge is unrelated to the first, the pre-

sumption does not arise. . . .

. . . . Nothing in Blackledge [v. Perry] presumed to

give the defendant a free ride for separate crimes

he may have committed, or to prevent a prosecutor

from bringing new charges as a result of changed

or altered circumstances which properly bear on

prosecutorial discretion.

Id. at 669 (internal citations omitted) (bracketed alterations

in original) (finding a presumption of vindictiveness

inappropriate when Arizona authorities filed charges

against the defendant only after he was acquitted on

unrelated charges in Colorado).

Our task in evaluating Mr. Williams’ contention is to

determine whether the resolution of the vindictive prosecu-

tion issue by the Court of Appeals of Wisconsin was

contrary to, or involved an unreasonable application of,

clearly established federal law, or was based on an unrea-

sonable determination of the facts in light of the evidence

presented in the state court proceeding.

The Wisconsin appellate court interpreted Thigpen and

Blackledge in accord with the Eleventh Circuit’s decision

in Humphrey and the Ninth Circuit’s decision in Martinez.

We cannot conclude that Blackledge and Thigpen clearly

establish a different rule than that applied by the Wis-

consin court. Nor can we say that the facts of those cases

are materially indistinguishable from this case such that

we might deem the decision of the Wisconsin court

“contrary to” Supreme Court precedent. See Williams v.

Taylor, 529 U.S. at 405-06. Moreover, we cannot say that the

Wisconsin court’s decision involved an “unreasonable

20 No. 05-4736

application” of that precedent in that the state court could

be said to have unreasonably refused to extend the prece-

dent to cover the issue. Blackledge and Thigpen rely on the

chilling effect of prosecutorial decisions that appear to

punish a defendant for exercising his federally protected

rights. See Blackledge, 417 U.S. at 27-28. While expressly

stating that there was no evidence of bad faith on the part

of the prosecutor, the Court noted that it was constitution-

ally impermissible for the State to “respond” to the defen-

dant’s invocation of his right to a de novo trial with a

greater charge. Id. at 28-29.

Here, by contrast, it is not evident that the state court

“responded” to a successful appeal with more significant

charges; instead, it brought those additional charges

while in the course of pursuing a retrial on the same charge

related to the 1996 event. Moreover, as the Wisconsin

court emphasized, the prosecutor now had the trial testi-

mony of the two victims, given under oath and subjected to

cross-examination. Previously, he had only the police

report statements of two very young children. These

circumstances were therefore vastly different from those

confronted by the original prosecutor in the 1990 incident,

when Annitra and Okima were the five and six year-old

victims (who were, presumably, incapable of substantial

testimony, even assuming, for the sake of argument, that

they were able to take and understand the oath). As fifteen

and sixteen year-olds, they were better suited to offer

testimony, and the trial court found that this change

alone established “abundant reason, other than vindic-

tiveness which would explain the conduct of the district

attorney.” R.20, Tr.27 at 16. In affirming that ruling, the

state appellate court stated, “[a]rmed with the knowledge

[on the basis of their testimony in an earlier trial] that the

No. 05-4736 21

witnesses were credible and their testimony could with-

stand cross-examination, the charging prosecutor felt he

could prove the case.” Williams, 677 N.W.2d at 704. These

circumstances simply are not cut of the same cloth as the

ones that confronted the Supreme Court in Blackledge and

Thigpen. See United States v. Heidecke, 900 F.2d 1155, 1160

(7th Cir. 1990) (“The existence of a rational reason for

the [subsequent] indictment further suggests that there

is no reasonable likelihood of vindictiveness.”).

Given both that two Courts of Appeals have held that

the bringing of unrelated charges stands outside the

Blackledge-Thigpen presumption and that the factual

circumstances of this case indicate legitimate reasons for

adding charges related to separate incidents involving

trial witnesses, we certainly cannot say that this decision

of the Court of Appeals of Wisconsin lies so far outside

the bounds of permissible interpretations of Supreme Court

precedent to qualify as objectively unreasonable under

Williams v. Taylor.

b.

Likewise, we must conclude that the Court of Appeals of

Wisconsin did not apply clearly established federal law

unreasonably in holding that the decision to add further

charges following an unsuccessful attempt to obtain a

plea also did not give rise to a presumption of vindictive-

ness. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the

Supreme Court held that a prosecutor’s addition of charges

following unsuccessful plea negotiations did not violate

due process when the prosecutor fully disclosed the

alternatives and the defendant was plainly subject to

prosecution on the additional charges. The Court acknowl-

22 No. 05-4736

edged that, when a state uses the tools in its prosecutorial

arsenal to retaliate and punish a defendant for the exer-

cise of a federally protected right, its action is unconstitu-

tional. Id. at 363. It further held, however, that “in the ‘give-

and-take’ of plea bargaining, there is no such element of

punishment or retaliation so long as the accused is free to

accept or reject the prosecution’s offer.” Id.; see also

United States v. Goodwin, 457 U.S. 368 (1982) (declining to

adopt a presumption of vindictiveness where a pros-

ecutor adds felony charges to an original misdemeanor

indictment after the defendant declines a plea offer and

insists on a jury trial). In short, the Supreme Court has

applied a presumption of vindictiveness “exclusively in the

post-trial context,” United States v. Jarrett, 447 F.3d 520,

525 (7th Cir. 2006), and has specifically considered and

rejected claims that a presumption is applicable when,

following failed plea negotiations, additional charges

are brought against a defendant. We already have con-

cluded that the Wisconsin courts did not unreasonably

apply federal law in holding that the appeal and retrial

circumstances in this case did not justify application of the

presumption; we decline to hold that clearly established

federal law dictates a different result when, on retrial,

unsuccessful plea negotiations lead to additional charges.

Accordingly, we affirm the district court’s denial of

habeas relief to Mr. Williams on his claim of vindictive

prosecution.

D. Speedy Trial

Finally, Mr. Williams contends that his right to a speedy

trial was violated by the substantial delays involved in

his final trial.

No. 05-4736 23

1.

In his state appeal, Mr. Williams claimed that, of the

delay of nearly three years, just over one year was fairly

attributable to the prosecution. The Court of Appeals of

Wisconsin disagreed; it regarded this characterization of

the delay as too generous to Mr. Williams. In reaching

this conclusion, the state appellate court undertook a

detailed examination of each delay, and concluded that no

more than four months of delay were attributable to the

State. At the beginning of its analysis, the court set forth its

approach. First, it would identify the delays attributable

to the defendant because those periods cannot be consid-

ered in determining whether the defendant was denied a

speedy trial. Williams, 677 N.W.2d at 700. Second, it would

identify the delay caused by the State.6 Third, it would

require an explanation by the State for all such periods. To

be a valid reason, continued the appellate court, the

delay must be one intrinsic to the case itself.

Having set forth its methodology, the court then engaged

in a fact-specific and detailed examination of the delays in

this case. In the course of that examination, the appellate

court held that adjournments requested by the State as it

6

Notably, the Court of Appeals of Wisconsin also identified a

third type of delay, those attributable to the ordinary demands

of the judicial system and therefore not attributable to either

party. State v. Williams, 677 N.W.2d 691, 701 (Wis. Ct. App. 2004).

However, the court did acknowledge that instances of “institu-

tional delay,” id. at 702,—not attributable to the “ordinary

demands of the judicial system,” id. at 701,—are attributable

to the State.

24 No. 05-4736

awaited word from its witnesses, who had relocated out

of state, were not delays fairly attributable to the prosecu-

tion in the speedy trial analysis.

2.

The district court found that Mr. Williams’ speedy trial

claim properly was denied under Barker v. Wingo, 407 U.S.

514 (1972). Although several years passed between the

bringing of charges and the commencement of Mr. Wil-

liams’ trial, the court noted that the state court had found

that most of the delay was either due to Mr. Williams’

“own affirmative conduct . . . or was not fairly attributable

to any actions of the prosecutor.” R.34 at 6-7. Given the

relative shortness of the delay attributable to the State, and

that Mr. Williams himself had not consistently demanded

a speedy trial, the district court found that the state court’s

resolution of the issue was “not erroneous, much less

unreasonable,” and denied the petition on this ground as

well. Id. at 7.

3.

The Sixth Amendment guarantees that a criminal defen-

dant enjoys “the right to a speedy and public trial.” U.S.

Const. amend. VI. The Supreme Court elaborated on the

substance of this right in Barker v. Wingo, 407 U.S. 514

(1972). Acknowledging that the speedy-trial right is a

circumstance-specific inquiry that is ill-suited for abso-

lute rules, Barker nevertheless provides a practical analyti-

cal approach that ensures that, in evaluating the facts of a

particular case, courts take into account both the interests

of the prosecution and of the defendant through the

No. 05-4736 25

application a four-factor balancing analysis. Id. at 530.

Under this approach, a court must consider the “[l]ength of

delay, the reason for the delay, the defendant’s assertion

of his right, and prejudice to the defendant.” Id.

The length of the delay serves as a “triggering mecha-

nism,” id.; without some presumptively prejudicial lapse

of time, there is no need to examine the rest of the factors,

id. In this case, the State conceded, and the Court of

Appeals of Wisconsin agreed, that the period of two years

and eleven months, following the defendant’s successful

appeal of his first conviction and the commencement of

his third trial, was presumptively prejudicial and triggers

the analysis set forth in Barker. See Williams, 677 N.W.2d

at 700.

United States v. Loud Hawk, 474 U.S. 302, 315 (1986),

characterizes the second Barker factor, the reason for the

delay, as “[t]he flag all litigants seek to capture.” The Court

of Appeals of Wisconsin was therefore correct in treating as

a critical factor the comparative fault of the parties in

causing the resulting delays. Mr. Williams does not chal-

lenge this general proposition. Indeed, in challenging the

appellate court’s apportionment of fault in the delays, Mr.

Williams points to no precedent of the Supreme Court that

requires an opposite conclusion with respect to any

particular instance of delay. Instead, he principally seeks to

charge the State with delays resulting from its inability to

secure witnesses.7 In evaluating this claim, we note that

Barker explicitly noted that the location of a missing witness

is a valid reason for delay. 407 U.S. at 531. In our own

interpretation of Barker, we have suggested that, in the

absence of some showing by the defendant that “the

7

Appellant’s Br. at 27-29.

26 No. 05-4736

missing witness was a deliberate attempt to delay the trial

in order to hamper the defense,” we shall not charge the

State with that delay. Owens v. Frank, 394 F.3d 490, 505 (7th

Cir. 2005) (internal citation and quotation marks omitted).

Accordingly, there is no reason to conclude that the Court

of Appeals of Wisconsin unreasonably applied Supreme

Court precedent in determining that the delay attributable

to the State amounted to four months.

In evaluating Mr. Williams’ assertion of the right to a

speedy trial, the third Barker factor, the Court of Appeals

of Wisconsin noted that Mr. Williams had been inconsistent

in his assertion of his speedy trial right, either by caus-

ing certain delays himself or by consenting to delays

requested by the State. Before this court, Mr. Williams

points to instances in which he asserted his right or ob-

jected to the State’s request for an adjournment. The Court

of Appeals did not dispute that Mr. Williams had raised

the speedy trial issue; instead, it concluded that the fact

that he did not uniformly assert his right “significantly

diminish[ed] the weight of his demand.” Williams, 677

N.W.2d at 702. Mr. Williams cites no authority that contra-

dicts this approach; indeed, our own precedent could be

read to support the methodology of the Court of Appeals

of Wisconsin, see United States v. Taylor, 196 F.3d 854, 862

(7th Cir. 1999) (concluding, when a defendant had raised

his speedy trial right simultaneously with his own re-

quest for delay, the inconsistency makes his “demand”

“entitled to little, if any, weight”).

The Court of Appeals of Wisconsin did not consider

extensively the issue of actual prejudice to the defendant.

It simply remarked, in conclusory fashion, that the de-

lays were not prejudicial. We must conclude, however,

that Mr. Williams has made no persuasive showing that

No. 05-4736 27

he was prejudiced by the delay in prosecuting his third

trial. Barker identifies three interests in light of which a

defendant’s claim of prejudice should be evaluated: “(i) to

prevent oppressive pretrial incarceration; (ii) to minimize

anxiety and concern of the accused; and (iii) to limit the

possibility that the defense will be impaired.” 407 U.S. at

532. Mr. Williams contends that he was prejudiced with

respect to the third interest. Specifically, he claims that the

defense was prejudiced with regard to “key timing issues,”

Appellant’s Br. at 31; essentially, he claims that the wit-

nesses’ memories had gone stale and that additional

witnesses able to provide probative testimony relating

to timing in 1990 could not be identified for the court in

2001. In each circumstance, however, he does not make

clear how the delays he has identified were responsible

for any prejudice.

We must conclude that on his speedy trial claim, like

the others raised in this proceeding, Mr. Williams has

failed to demonstrate that the decision of the Court of

Appeals of Wisconsin is contrary to, or involves an unrea-

sonable application of, clearly established law as articu-

lated by the Supreme Court. See 28 U.S.C. § 2254(d)(1).

Conclusion

For the reasons stated above, we affirm the district

court’s denial of Mr. Williams’ petition.

AFFIRMED

28 No. 05-4736

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-20-07