Opposition Brief — Mark D. Jensen, Petitioner v. William Pollard

No. 19-7603

In The

Supreme Court of the United States

⎯⎯⎯⎯⎯  ⎯⎯⎯⎯⎯

MARK D. JENSEN,

Petitioner,

v.

WILLIAM POLLARD,

Respondent.

⎯⎯⎯⎯⎯  ⎯⎯⎯⎯⎯

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

⎯⎯⎯⎯⎯  ⎯⎯⎯⎯⎯

BRIEF IN OPPOSITION

⎯⎯⎯⎯⎯  ⎯⎯⎯⎯⎯

JOSHUA L. KAUL

Attorney General of Wisconsin

SCOTT E. ROSENOW*

Assistant Attorney General

AARON R. O’NEIL

Assistant Attorney General

Attorneys for Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-3539

(608) 266-9594 (Fax)

rosenowse@doj.state.wi.us

*Counsel of Record

QUESTION PRESENTED

Did the district court abuse its discretion when it determined that the State

had complied with the terms of its grant of conditional habeas corpus relief, and it

thus lacked jurisdiction over Petitioner Mark D. Jensen’s challenges to his reinstated

judgment of conviction?

i

DIRECTLY RELATED CASES

The following cases arise from the same trial court case as the case in this

Court or challenge the same criminal conviction challenged in this Court. See Sup.

Ct. R. 14.1(b)(iii).

•

State v. Jensen, No. 2004AP2481-CR, Wisconsin Supreme Court. Judgment

entered February 23, 2007.

•

State v. Jensen, No. 02-CF-314, Kenosha County Circuit Court. Judgment

entered February 27, 2008.

•

State v. Jensen, No. 2009AP898-CR, Wisconsin Court of Appeals. Judgment

entered December 29, 2010.

•

State v. Jensen, No. 2009AP898-CR, Wisconsin Supreme Court. Judgment

entered June 15, 2011.

•

Jensen v. Schwochert, No. 11-C-803, U.S. District Court for the Eastern

District of Wisconsin. Judgment entered December 18, 2013.

•

Jensen v. Clements, No. 14-1380, U.S. Court of Appeals for the Seventh Circuit.

Judgment entered September 8, 2015.

•

State v. Jensen, No. 02-CF-314, Kenosha County Circuit Court. Judgment

entered September 8, 2017.

•

Jensen v. Clements, No. 11-C-803, U.S. District Court for the Eastern District

of Wisconsin. Judgment entered November 27, 2017.

•

Jensen v. Pollard, No. 17-3639, U.S. Court of Appeals for the Seventh Circuit.

Judgment entered May 15, 2019.

•

State v. Jensen, No. 2018AP1952-CR, Wisconsin Court of Appeals. Judgment

entered February 26, 2020.

•

State v. Jensen, No. 2018AP1952-CR, Wisconsin Supreme Court. No judgment

entered.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

DIRECTLY RELATED CASES ..................................................................................... ii

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE ....................................................................................... 2

I.

The State charges Jensen for killing his wife, Julie, the state courts

admit Julie’s letter and statements, and a jury convicts Jensen of firstdegree intentional homicide. .............................................................................. 2

II.

The Wisconsin courts affirm Jensen’s conviction on direct appeal, but

the federal courts grant Jensen habeas corpus relief. ....................................... 5

III.

The state trial court admits Julie’s letter and statements and reinstates

Jensen’s judgment of conviction. ........................................................................ 6

IV.

Jensen returns to federal court seeking enforcement of the district

court’s conditional writ and appeals his reinstated judgment of

conviction in state court. ..................................................................................... 9

REASONS TO DENY THE PETITION ...................................................................... 12

I.

This Court should deny Jensen’s petition because of the ongoing statecourt proceedings that have granted him the same remedy that he seeks

from this Court. ................................................................................................. 12

II.

The Seventh Circuit’s decision comports with this Court’s precedent,

and Jensen has not presented any compelling reasons why this Court

should grant his petition................................................................................... 14

A.

The Seventh Circuit’s opinion comports with this Court’s

precedent. ............................................................................................... 15

B.

Jensen offers no compelling reasons why this Court should grant

his petition. ............................................................................................. 17

CONCLUSION............................................................................................................. 25

iii

TABLE OF AUTHORITIES

Cases

Allegheny Cty. v. Frank Mashuda Co.,

360 U.S. 185 (1959) .................................................................................................. 12

Bryant v. Wilkins,

383 U.S. 972 (1966) .................................................................................................. 12

Colorado River Water Conservation Dist. v. United States,

424 U.S. 800 (1976) ...................................................................................... 12, 13, 14

Crawford v. Washington,

541 U.S. 36 (2004) .................................................................................................. 3, 4

Davis v. Pritchess,

388 F. Supp. 105 (C.D. Cal. 1974) ........................................................................... 22

Deposit Bank of Frankfort v. Bd. of Councilmen of Frankfort,

191 U.S. 499 (1903) .................................................................................................. 21

Douglas v. City of Jeanette,

319 U.S. 157 (1943) .................................................................................................. 13

Fay v. Noia,

372 U.S. 391 (1963) .................................................................................................. 16

Giles v. California,

554 U.S. 353 (2008) .................................................................................................... 5

Heck v. Humprhey,

512 U.S. 477 (1994) .................................................................................................. 13

Hilton v. Braunskill,

481 U.S. 770 (1987) ...................................................................................... 16, 19, 20

Jennings v. Stephens,

574 U.S. 271 (2015) .................................................................................... 10, passim

Jensen v. Clements,

800 F.3d 892 (7th Cir. 2015) .................................................................................. 2, 6

Jensen v. Clements,

No. 11-C-803, 2017 WL 5712690 (E.D. Wis. Nov. 27, 2017) ..................................... 6

iv

Jensen v. Pollard,

924 F.3d 451 (7th Cir. 2019) ...................................................................... 10, passim

Jensen v. Schwochert,

No. 11-C-0803, 2013 WL 6708767 (E.D. Wis. Dec. 18, 2013) ............................... 5, 6

Jones v. Basinger,

635 F.3d 1030 (7th Cir. 2011) .................................................................................. 23

Knox v. Serv. Emps. Int’l Union, Local 1000,

567 U.S. 298 (2012) .................................................................................................. 14

McManus v. Neal,

779 F.3d 634 (7th Cir. 2015) .................................................................................... 23

Michigan v. Bryant,

562 U.S. 344 (2011) .................................................................................................... 7

Milne v. Milne,

382 U.S. 896 (1965) .................................................................................................. 12

Murray v. Carrier,

477 U.S. 478 (1986) .................................................................................................. 16

Ohio v. Clark,

576 U.S. 237 (2015) .................................................................................................... 7

Owens v. Duncan,

781 F.3d 360 (7th Cir. 2015) .................................................................................... 23

Pert v. Wainwright,

383 U.S. 972 (1966) .................................................................................................. 12

Pidgeon v. Smith,

785 F.3d 1165 (7th Cir. 2015) .................................................................................. 15

Pritchess v. Davis,

421 U.S. 482 (1975) .................................................................................................. 22

State v. Jensen,

2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518 ..................................................... 3, 4

State v. Jensen,

2011 WI App 3, 331 Wis. 2d 440, 794 N.W.2d 482 ..................................... 2, passim

United States ex rel. Owens v. Duncan,

No. 08-C-7159, 2015 WL 5950124 n.1 (N.D. Ill. 2015) ........................................... 23

v

United States v. Ayers,

76 U.S. 608 (1869) .............................................................................................. 21, 22

Wilkinson v. Dotson,

544 U.S. 74 (2005) .................................................................................................... 20

Younger v. Harris,

401 U.S. 37 (1970) .................................................................................................... 13

Statutes

28 U.S.C. § 2243 ........................................................................................................... 16

Wis. Stat. § 940.01 ......................................................................................................... 2

Other Authorities

Sup. Ct. R. 10 ............................................................................................................... 17

Sup. Ct. R. 10(a) ........................................................................................................... 18

Sup. Ct. R. 10(b) ........................................................................................................... 18

Sup. Ct. R. 10(c) ........................................................................................................... 18

Sup. Ct. R. 14.1(b)(iii) .................................................................................................... ii

vi

INTRODUCTION

This Court should deny Jensen’s request that this Court grant his petition for

a writ of certiorari and summarily reverse the Seventh Circuit’s decision. Jensen’s

petition does not acknowledge his ongoing proceedings in Wisconsin’s appellate

courts that challenge the same conviction he contests here. The Wisconsin Court of

Appeals recently ordered that Jensen receive a new trial, the same remedy that he

asks for from this Court. While state appellate proceedings remain ongoing, the

possibility that Jensen will ultimately receive from the state courts the relief he seeks

here weighs strongly against granting Jensen’s petition.

In addition, Jensen has not offered any compelling reason for this Court to take

his case. The Seventh Circuit held that the district court had not abused its discretion

by concluding that it lost jurisdiction over Jensen’s habeas petition because the State

had complied with the district court’s conditional writ of habeas corpus. That is the

straightforward issue in this case, and Jensen largely ignores it in his petition. The

Seventh Circuit’s decision was correct and consistent with this Court’s precedent.

There is thus no basis for this Court to grant certiorari and summarily reverse the

court of appeals’ decision.

1

STATEMENT OF THE CASE

I.

The State charges Jensen for killing his wife, Julie, the state

courts admit Julie’s letter and statements, and a jury convicts

Jensen of first-degree intentional homicide.

Jensen’s wife, Julie, died in 1998. Her autopsy showed that the cause of death

was ethylene glycol poisoning and “asphyxia by smothering.” State v. Jensen, 2011

WI App 3, ¶ 37, 331 Wis. 2d 440, 794 N.W.2d 482, (Jensen II), (R-App. 134).1 In 2002,

the State charged Jensen with first-degree intentional homicide for killing her.

Jensen v. Clements, 800 F.3d 892, 896 (7th Cir. 2015) (Clements), (Pet-App. 15–36);

Wis. Stat. § 940.01.

Before she died, Julie made statements to various people in which she said

that she feared that Jensen was trying to poison her and make it look like a suicide.

Jensen II, 794 N.W.2d 482, ¶¶ 5–7, 40–67, 72. She also said that she was not suicidal.

Id. ¶ 67.

Julie gave an envelope to her neighbors, the Wojts, two weeks before her death

and asked them to give it to the police if anything happened to her. Clements, 800

F.3d at 895. The envelope, which the Wojts gave to police after Julie died, held a letter

addressed to Police Officer Ron Kosman and Detective Paul Ratzburg. Id. at 895;

1 Citations for the facts in the statement of the case are mostly to the state

appellate and federal court decisions arising from Jensen’s conviction and to the

dockets of the courts below. Jensen’s appendix contains the federal court decisions.

Respondent’s appendix contains the relevant state court decisions. Citations to “Dkt.”

refer to the docket of the Eastern District of Wisconsin in case number 11-cv-803.

Citations to “Doc.” refer to the Seventh Circuit’s docket in case number 17-3639.

2

Jensen II, 794 N.W.2d 482, ¶¶ 4–7. The letter said, among other things, “if anything

happens to me, [Jensen] would be my first suspect.” Jensen II, 794 N.W.2d 482, ¶ 7.

It also said, “I would never take my life . . . .” Id. Julie had also previously left a

voicemail for Kosman saying that she thought Jensen was trying to kill her. Id. ¶ 6.

She later told him in person that, if she died, Jensen would be her first suspect and

she would not have killed herself. Id.

Jensen asked the trial court to exclude Julie’s letter and her statements to

Kosman as violating his rights under the Confrontation Clause. Id. ¶ 9. The court

initially denied the motion, but, after this Court decided Crawford v. Washington, 541

U.S. 36 (2004), it reconsidered and ruled that the evidence was testimonial hearsay

and inadmissible. Jensen II, 794 N.W.2d 482, ¶ 10. The court also denied the State’s

request to admit the evidence under the forfeiture-by-wrongdoing doctrine. Id.

Both parties took an interlocutory appeal, and the case wound up before the

Wisconsin Supreme Court. Id. ¶ 11. In 2007, the court held that the letter and the

voicemails were testimonial. Id.

In doing so, the court adopted a “broad” definition of testimonial based on

Crawford. State v. Jensen, 2007 WI 26, ¶ 24, 299 Wis. 2d 267, 727 N.W.2d 518 (Jensen

I), (R-App. 108.). Crawford discussed three proposed definitions of testimonial

without specifically adopting one. Crawford, 541 U.S. at 51–52. The Wisconsin

Supreme Court analyzed Julie’s letter and voicemails under Crawford’s third

formulation, which asks whether the circumstances “would lead an objective witness

3

reasonably to believe that the statement would be available for use at a later trial.”

Id. (citation omitted); see also Jensen I, 727 N.W.2d 518, ¶ 20. Julie’s letter was

testimonial, the court said, because “a reasonable person in Julie’s position would

anticipate a letter addressed to the police and accusing another of murder would be

available for use at a later trial,” and she intended it “to be used to further investigate

or aid in prosecution in the event of her death.” Jensen I, 727 N.W.2d 518, ¶ 27. The

court held that the voicemail was testimonial because Julie “sought to relay

information in order to further the investigation of Jensen’s activities.” Id. ¶ 30. The

Court did not address whether Julie’s in-person statements to Kosman were

testimonial.

The court then addressed the forfeiture-by-wrongdoing doctrine. Id. ¶¶ 35–57.

It adopted a “broad” version of the doctrine under which a defendant forfeits his right

to confront a witness if he is the cause of the witness’s unavailability for crossexamination. Id. ¶ 57. It remanded to allow the trial court to address whether to

admit the evidence on that basis. Id. ¶ 58.

On remand, the trial court found that Jensen had forfeited his right to confront

Julie by killing her and admitted her letter and statements to Kosman. Jensen II, 794

N.W.2d 482, ¶ 14. And, after a trial that lasted more than 30 days, a jury convicted

Jensen of first-degree intentional homicide for killing Julie. Id. ¶ 19. The trial court

sentenced him to life in prison without the possibility of release. (Dkt. 25-2.)

4

II.

The Wisconsin courts affirm Jensen’s conviction on direct appeal,

but the federal courts grant Jensen habeas corpus relief.

Shortly after Jensen’s conviction, this Court decided Giles v. California, 554

U.S. 353 (2008), addressing the forfeiture-by-wrongdoing exception to the

Confrontation Clause. Jensen II, 794 N.W.2d 482, ¶ 20. This Court held that, for the

exception to apply, a defendant had to have made the witness unavailable by “conduct

designed to prevent a witness from testifying.” Giles, 554 U.S. at 365.

Jensen then appealed his conviction. He argued that Giles’s narrow

interpretation of the forfeiture doctrine overruled the Wisconsin Supreme Court’s

broad interpretation that the trial court applied when admitting Julie’s letter and

statements. Jensen II, 794 N.W.2d 482, ¶ 20. The Wisconsin Court of Appeals

affirmed Jensen’s conviction in 2011. It assumed without deciding that Giles barred

the admission of the evidence and held that any error was harmless. Id. ¶¶ 35–73. In

so holding, the court determined that it was bound by the Wisconsin Supreme Court’s

prior ruling that the evidence was testimonial. Id. ¶ 27. The Wisconsin Supreme

Court denied Jensen’s petition for review.

After his state-court appeal, Jensen filed a petition for a writ of habeas corpus

in the Eastern District of Wisconsin. (Dkt. 1.) He argued that the court of appeals had

unreasonably resolved his confrontation claim. (Dkt. 1:15–17); Jensen v. Schwochert,

No. 11-C-0803, 2013 WL 6708767, at *6 (E.D. Wis. Dec. 18, 2013) (Schwochert), (Pet-

5

App. 37–49). The State did not challenge Jensen I’s holding that Julie’s letter

statements were testimonial. Schwochert, 2013 WL 6708767, at *6.

The court granted Jensen’s petition in 2013. Id., at *17. The court held that the

Wisconsin Court of Appeals had unreasonably concluded that the letter’s and

statements’ admission was harmless error. Id., at *9–16. The court did not address

whether the letter and statements were testimonial, noting instead that “the parties

do not dispute” the issue. Id., at *6.

The court ordered that Jensen be “released from custody unless, within 90 days

of the date of this decision, the State initiates proceedings to retry him.” Id., at *17.

The State appealed, and a divided panel in the Seventh Circuit affirmed.

Clements, 800 F.3d 892. The majority agreed with district court’s holding that the

admission of the letter and the statements was not harmless. Id. at 901–08. It did not

address whether the evidence was testimonial. Id. at 899–908. The dissent concluded

that the Wisconsin Court of Appeals’ harmlessness decision was a reasonable

application of federal law. Id. at 908–13. The Seventh Circuit issued its mandate in

October 2015. (Dkt. 79.)

III.

The state trial court admits Julie’s letter and statements and

reinstates Jensen’s judgment of conviction.

In December 2015, the Kenosha County Circuit Court vacated Jensen’s

judgment of conviction. (Dkt. 101:1–2, 5); Jensen v. Clements, No. 11-C-803, 2017 WL

6

5712690, at *1–2 (E.D. Wis. Nov. 27, 2017), (Pet-App. 8–14). The State said it

intended to retry Jensen. (Dkt. 101:5.)

Jensen moved to exclude Julie’s statements and letter. (Dkt. 94-3:97; 101:5.)

The parties extensively briefed and orally argued the motion. (Dkt. 101:5 & n.1.) The

State argued that the Wisconsin Supreme Court’s 2007 holding that the statements

and letter were testimonial was no longer valid because this Court had narrowed the

definition of testimonial since that decision. (Dkt. 94-5:50.) Under current law, the

State argued, the statements were no longer testimonial. (Dkt. 94-5:50.) The State

further argued that, under Wisconsin’s law-of-the-case doctrine, the court should

apply the current law rather than following the supreme court’s 2007 decision. (Dkt.

94-5:74–77.)

The circuit court determined that Julie’s statements and letter were

admissible. (Dkt. 94-9:68–71; 101:5.) Specifically, it concluded that under Ohio v.

Clark, 576 U.S. 237 (2015), and Michigan v. Bryant, 562 U.S. 344, 349 (2011)—both

issued since the Wisconsin Supreme Court’s 2007 decision—the letter and statements

were no longer testimonial. (Dkt. 94-9:70–71; 101:5.) The trial court also addressed

whether the law-of the-case doctrine required it to follow the state appellate courts’

or federal courts’ decisions. (Dkt. 94-9:69–70.) It determined that, of these courts, only

the Wisconsin Supreme Court had addressed whether the statements and letter were

7

testimonial. (Dkt. 94-9:69–70.) And, the court concluded, it was able to revisit that

decision under the law-of-the-case doctrine and apply current law. (Dkt. 94-9:69–70.)

The State then did two things. First, it filed a motion to clarify in the district

court. (Dkt. 86; 101:5.) It indicated that it intended to move the trial court to reinstate

Jensen’s judgment of conviction based on the court’s ruling but wanted to ensure that

such a step did not violate the federal district court’s order granting habeas relief.

(Dkt. 86:5; 101:5–6.) It asked the federal district court to explain if it intended its

grant of habeas relief to require the State to conduct a jury trial or just to restart its

prosecution of Jensen. (Dkt. 86:5–6; 101:6.) Second, the State moved the trial court

to reinstate Jensen’s judgment of conviction. (Dkt. 101:6.)

While the latter motion was pending, the district court addressed the State’s

motion for clarification. (Dkt. 90.) The court noted its continuing jurisdiction to

ensure that the State was complying with its conditional grant of habeas relief and

its authority to clarify its order. (Dkt. 90:5.) It then explained that its conditional writ

said that the State had to release Jensen from custody “unless, within 90 days of the

date of this decision, the State initiates proceedings to retry him.” (Dkt. 90:5.) The

court concluded that “[t]he State did in fact initiate proceedings to retry Jensen

within 90 days of the effective date of the court’s order.” (Dkt. 90:5.) It also noted that

the prison warden had already released Jensen from custody, so the Respondent “has

no power to release him in any event, and thus cannot be found in contempt for failing

8

to do so.” (Dkt. 90:5–6.) But the court declined to say what it would do if the state

trial court reinstated Jensen’s conviction, concluding that such a ruling would be an

advisory opinion since the trial court had not yet acted on the State’s motion. (Dkt.

90:6.)

The trial court then reinstated Jensen’s judgment of conviction. (Dkt. 94-11:4–

5; 101:6–7.) The court reasoned that, because of its decision to admit Julie’s letter and

statements, “the evidence in a new trial would be materially the same as in the first

trial.” (Dkt. 94-11:4; 101:6–7.) It further explained that “it doesn’t make a whole lot

of sense to me as far as judicial economy to have a new trial on the same evidence as

in the first trial.” (Dkt. 94-11:5.) The trial court entered a judgment of conviction

sentencing Jensen to life imprisonment without the possibility of release. (Dkt. 9411:11–12.)

IV.

Jensen returns to federal court seeking enforcement of the district

court’s conditional writ and appeals his reinstated judgment of

conviction in state court.

After the circuit court entered the judgment, Jensen asked the Eastern District

to enforce its judgment granting habeas relief. Jensen argued that the trial court

violated the order by reinstating the judgment without holding a jury trial. (Dkt. 93;

101:2, 7.) The court denied Jensen’s request. (Dkt. 101:1, 7–16.) It rejected his

argument that the court’s order required a retrial without Julie’s letter and

statements. (Dkt. 101:7–8.) Instead, the court said, the order required only that the

State begin retrial proceedings. (Dkt. 101:8.) The court then determined that once the

9

State complied with the writ, it lost jurisdiction over Jensen’s habeas case, and

Jensen needed to challenge his new conviction in a new federal petition after

exhausting his state remedies. (Dkt. 101:16.)

Jensen appealed the district court’s order to the Seventh Circuit, which

unanimously affirmed with one judge concurring. Jensen v. Pollard, 924 F.3d 451,

453 (7th Cir. 2019) (Pollard), (Pet-App. 1–6). The majority opinion agreed that the

district court had continuing jurisdiction to determine whether the State had

complied with its conditional habeas writ, but once the State complied, the district

court lost jurisdiction. Pollard, 924 F.3d at 454. Thus, the court explained, the only

issue to review was whether the State had complied with the district court’s writ. Id.

The court then considered the writ’s language and the district court’s conclusion that

the writ required only that the State reinitiate proceedings for a retrial within the

time limit. Id. at 455. It held that the district court had not abused its discretion in

interpreting its own writ. Id. And the Court rejected Jensen’s argument that the writ

necessarily required a retrial without the letters and the statements, pointing to this

Court’s warning in Jennings v. Stephens “that courts ‘should not infer . . . conditions

from silence’ when interpreting conditional writs.” Id. (alteration in original) (quoting

Jennings v. Stephens, 574 U.S. 271, 277 (2015).

Jensen moved for rehearing en banc, which the court denied after requesting

a response from the State. (Doc. 47; 48; 52; 54.)

10

In the meantime, Jensen had appealed his reinstated conviction to the

Wisconsin Court of Appeals. See State v. Jensen, No. 2018AP1952-CR (Wis. Ct. App.

Dist. II Feb. 26, 2020), (R-App. 143–55). Jensen argued that the trial court had

violated the conditional habeas writ by reinstating his judgment without a trial. (RApp. 144, 152.). He also claimed that the court was bound by Wisconsin’s law-of-thecase doctrine to follow the prior decisions of the federal courts and Wisconsin’s

appellate courts and deem Julie’s letter and statements testimonial. (R-App. 144,

152.) Jensen further argued that the trial court had erred by finding the letter and

statements nontestimonial based on Clark and Bryant. (R-App. 144, 152.)

The Wisconsin Court of Appeals reversed the trial court on February 26, 2020.

(R-App. 152–55.) Sidestepping most of the issues Jensen raised, it concluded that it

and the trial court were bound to follow the Wisconsin Supreme Court’s 2007 Jensen

I decision holding that Julie’s statements and letter were testimonial. (R-App. 152–

54.) The court determined that the trial court had thus erred by reinstating the

judgment based on inadmissible evidence and remanded to the trial court for a new

trial. (R-App. 152–54.)

The State’s petition for review from the court of appeals’ decision is currently

pending in the Wisconsin Supreme Court. The State is requesting that the court grant

review to address the court of appeals’ conclusion that it was bound to follow Jensen I

and to assess whether Julie’s letter and statements are testimonial under Clark and

Bryant. It is also asking the court, should it rule in favor of the State on these issues,

11

to remand to the court of appeals to address in the first instance whether the circuit

court erred by reinstating Jensen’s judgment of conviction.

REASONS TO DENY THE PETITION

I.

This Court should deny Jensen’s petition because of the ongoing

state-court proceedings that have granted him the same remedy

that he seeks from this Court.

This Court should deny Jensen’s petition, first, because not only are appellate

proceedings from his reinstated judgment of conviction still pending in state court,

but the Wisconsin Court of Appeals has granted him a new trial. If the Wisconsin

Supreme Court declines review of or affirms the court of appeals’ decision, Jensen

will have obtained the same remedy from Wisconsin’s courts that he asks for from

this Court, and his case will become moot. This Court should not get involved with

this case while the state-court proceedings are ongoing.

This Court has denied certiorari when a petitioner has an adequate remedy

under state law. See Pert v. Wainwright, 383 U.S. 972 (1966); Bryant v. Wilkins, 383

U.S. 972 (1966); Milne v. Milne, 382 U.S. 896 (1965).

Further, federal court “[a]bstention is appropriate ‘in cases presenting a

federal constitutional issue which might be mooted or presented in a different posture

by a state court determination of pertinent state law.’” Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 814 (1976) (quoting Allegheny Cty.

v. Frank Mashuda Co., 360 U.S. 185, 189 (1959)). Federal courts should also generally

12

abstain from exercising their jurisdiction when a defendant has invoked it to enjoin

state criminal proceedings. Colorado River, 424 U.S. at 816 (citing Younger v. Harris,

401 U.S. 37 (1970), and Douglas v. City of Jeanette, 319 U.S. 157 (1943)). And

abstention is warranted when there are ongoing parallel state-court criminal trial or

appellate proceedings. See Heck v. Humprhey, 512 U.S. 477, 487 n.8 (1994) (citing

Colorado River, 424 U.S. 800).

These principles support this Court’s denying Jensen’s petition. Jensen’s direct

appeal of his reinstated conviction is an adequate remedy for his claims of federal

constitutional error. Jensen argued in both the state trial court and the Wisconsin

Court of Appeals that the trial court could not reinstate his judgment of conviction

without violating the district court’s order granting him habeas relief and his right to

a jury trial. That is the same claim he raises here. This Court should not grant review

when the petitioner has an adequate remedy for his claims under state law.

In addition, this Court should decline review because Jensen’s ongoing state

proceedings might render his petition moot. The Wisconsin Court of Appeals has

already granted Jensen, on state-law grounds, the same remedy of a new trial that

he seeks from this Court. If the Wisconsin Supreme Court, in its discretion, denies

the State’s petition for review, or grants review and affirms the court of appeals, then

the state trial court will give Jensen a new trial. See Wis. Stat. § (Rule) 809.62(1r)

(review in the Wisconsin Supreme Court “is a matter of judicial discretion, not of

right, and will be granted only when special and important reasons are presented”).

13

If the state court’s order for a new trial stands, then it would be impossible for this

Court to grant Jensen any effectual relief. See Knox v. Serv. Emps. Int’l Union, Local

1000, 567 U.S. 298, 307 (2012).

Similarly, this Court should allow the state-court proceedings to play out

before possibly becoming involved in this case. Granting Jensen’s petition would be

tantamount to invoking federal jurisdiction to restrain ongoing state criminal

proceedings. Colorado River, 424 U.S. at 816. Such intervention is appropriate only

when there is evidence of bad faith, harassment, or prosecution under an invalid

statute. Id. No such concerns are present here. There has never been any suggestion

that Jensen’s prosecution under Wisconsin’s unquestionably valid homicide statute

was meant to harass him. And the courts below all concluded that the State and the

trial court either acted in good faith or it was a question that a federal court should

not reach. (Dkt. 101:9–13); Pollard, 924 F.3d at 455–56. Further, the Wisconsin Court

of Appeals’ decision to grant Jensen a new trial refutes any argument that the statecourt proceedings are a sham. This Court should decline review in light of the parallel

proceedings that are still ongoing in Wisconsin’s state courts.

II.

The Seventh Circuit’s decision comports with this Court’s

precedent, and Jensen has not presented any compelling reasons

why this Court should grant his petition.

This Court should also deny Jensen’s petition because the Seventh Circuit’s

opinion is consistent with this Court’s case law. For that reason, and because Jensen

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has not provided any compelling reasons in support of granting his petition, this

Court should reject Jensen’s request to summarily reverse the Seventh Circuit.

A.

The Seventh Circuit’s opinion comports with this Court’s

precedent.

There is no reason for this Court to grant Jensen’s request to summarily

reverse the Seventh Circuit because its opinion is correct and consistent with this

Court’s case law. (Pet. 24.)

The panel’s decision is straightforward. It recognized that the issue was

whether the district court had correctly concluded that it lost jurisdiction over

Jensen’s petition because the State complied with the conditional writ. That question,

in turn, depended on the meaning of the language that the district court used when

issuing the writ. Pollard, 924 F.3d at 454–55. Applying established circuit precedent,

the panel explained that it would review the district court’s interpretation of its own

order for an abuse of discretion. Id. at 454–55 (citing Pidgeon v. Smith, 785 F.3d 1165,

1172 (7th Cir. 2015)). The panel held that the writ’s unambiguous language

supported the district court’s interpretation that the writ required the State just to

initiate retrial proceedings. Pollard, 924 F.3d at 455. It then rejected Jensen’s

argument that the writ necessarily contained a right to a new trial without Julie’s

letter and statements. Id. Specifically, the panel explained that this Court in

Jennings had warned courts not to “infer . . . conditions from silence” when

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interpreting conditional writs. Id. (alteration in original) (quoting Jennings, 574 U.S.

at 277).

This decision was correct. The issue it resolved was narrow: whether the

district court abused its discretion when it interpreted its order granting Jensen

habeas relief. The court held that the district court had not erred by interpreting the

order to require only that the State initiate proceeding to retry Jensen within 90 days

or release him from custody. The court’s holding that the district court had not abused

its discretion is logical. The district court was interpreting its own order, which

contemplates either the State initiating retrial proceedings or releasing Jensen. An

appellate court would be hard-pressed to conclude that the district court meant

something other than what it said it meant by its own unambiguous language. The

Seventh Circuit properly held that the district court did not abuse its discretion.

The Seventh Circuit’s decision is also consistent with this Court’s precedent.

The court correctly recognized that its review was limited to whether the district

court had abused its discretion in interpreting its order granting habeas relief.

“Discretion is implicit in the statutory command that the judge, after granting the

writ and holding a hearing of appropriate scope, ‘dispose of the matter as law and

justice require.’” Murray v. Carrier, 477 U.S. 478, 512 n.18 (1986) (Stevens, J.,

concurring) (quoting Fay v. Noia, 372 U.S. 391, 438 (1963); 28 U.S.C. § 2243). Habeas

courts have “broad discretion in conditioning a judgment granting habeas relief.”

Hilton v. Braunskill, 481 U.S. 770, 775 (1987).

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The court’s rejection of Jensen’s request to read a condition of a right to a jury

trial without Julie’s letter or statements into the writ also comported with this

Court’s case law. As the Seventh Circuit recognized, Jennings cautioned federal

courts not to read unstated conditions into conditional writs of habeas corpus.

Pollard, 924 F.3d at 455 (citing Jennings, 574 U.S. at 277). A petitioner’s “rights

under the judgment were what the judgment provided.” Id. (quoting Jennings, 574

U.S. at 276). Interpreting a conditional writ to contain more conditions than it states

would improperly transform habeas relief into “a general grant of supervisory

authority over state trial courts.” Id. (quoting Jennings, 574 U.S. at 278).

The Seventh Circuit’s review of the district court’s interpretation of the

conditional writ for an abuse of discretion, and its holding that it could not read

additional conditions into the writ, were consistent with this Court’s precedent.

Accordingly, there is no basis for this Court to grant Jensen’s petition and summarily

reverse the Seventh Circuit’s opinion.

B.

Jensen offers no compelling reasons why this Court should

grant his petition.

This Court should also deny Jensen’s petition because it contains no

“compelling reasons” for this Court to grant his petition. Sup. Ct. R. 10.

Jensen never explains precisely why he thinks his case is important enough to

warrant this Court’s review. He does not argue that his case falls under any of the

reasons listed in Rule 10 that typically justify this Court’s exercise of certiorari

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jurisdiction. Jensen does not, for example, explicitly identify any conflict between the

Seventh Circuit’s decision and the decision of another United States court of appeals

or a state court of last resort. Sup. Ct. R. 10(a) and (b).

Jensen asks this Court to summarily reverse the Seventh Circuit. (Pet. 24.)

Though he does not directly say so, this request suggests that he thinks that the

Seventh Circuit’s decision resolved an important issue of federal law that this Court

needs to address or that conflicts with this Court’s decisions. Sup. Ct. R. 10(c).

Jensen’s petition fails to show that the Seventh Circuit’s decision meets this

standard for two reasons.

First, Jensen’s petition completely ignores the Seventh Circuit’s reasoning. He

acknowledges that the court affirmed the district court’s decision that the writ

required the State only to initiate retrial proceedings. (Pet. 8, 18–19.) But he does not

mention how the court reached this conclusion or explain why it is wrong. Jensen

does not recognize that the Seventh Circuit, applying circuit law, said that the district

court’s jurisdiction was limited to determining whether the State had complied with

the conditional writ’s terms. He does not discuss that the Seventh Circuit reviewed

the district court’s interpretation of its writ for an abuse of discretion. Jensen does

not mention the Seventh Circuit’s conclusion that, under this standard of review, the

district court did not abuse its discretion because the writ’s plain language required

only that the State reinitiate proceedings. He also does not say anything about the

Seventh Circuit’s holding that, because the State had complied with the writ, both it

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and the district court lacked jurisdiction to consider his petition further. And finally,

Jensen does not acknowledge the court’s rejection of his argument, based on this

Court’s warning in Jennings, that the writ necessarily required a retrial. Jensen

cannot show that the Seventh Circuit decided an important issue warranting this

Court’s review by refusing to engage with the court’s actual decision.

Second, nothing that Jensen says in his petition shows that his case is

important enough for this Court to take. As he did below, Jensen contends that, as a

matter of law, the district court’s conditional writ entitled him to a new trial without

Julie’s letter. But Jensen’s arguments do not even prove that the Seventh Circuit

erred, let alone decided an important issue of federal law that this Court should

address.

Jensen contends this Court has held that conditional habeas writs require

correction of the underlying error by replacing the “invalid judgment with a valid

one.” (Pet. 9, 17, 19) He further says that the Seventh Circuit’s decision that the writ

required just reinitiating proceedings was “rigidly literal.” (Pet. 9.) The court, he

argues, let the State trial court effectively overrule the federal-court judgments on

his confrontation claim and take away his rights under those decisions. (Pet. 9–10,

21.) Jensen maintains that only steps that “correct the constitutional violation found

by the court” would satisfy the district court’s order. (Pet. 17 (quoting Braunskill, 481

U.S. at 775)). He also argues that the Seventh Circuit’s decision “breaks from the way

constitutional errors are cured” after a court grants habeas relief. (Pet. 20–21.) The

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writ is meant to put petitioners in the same position they would be in had no

constitutional error occurred. (Pet. 20–21.) This requires giving him a new trial since

the constitutional error that led to his getting habeas relief happened at his trial.

(Pet. 20–21.)

These arguments fail. Jensen selectively quotes this Court’s decisions when he

says that it has held that a conditional writ requires replacing the “invalid judgment

with a valid one.” The cases that Jensen cites say that conditional writs “give States

time” and “an opportunity” to replace an invalid judgment. Jennings, 574 U.S. at 278,

286 (quoting Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia, J., concurring)); see

also Braunskill, 481 U.S. at 775. These cases do not support Jensen’s claim that the

conditional writ required the State to hold a trial without Julie’s letters and

statements. As argued, Jennings specifically warns federal courts against reading

conditions into a writ that are not there. And the state trial court took the opportunity

to replace Jensen’s invalid judgment with a valid one by concluding that, under

current confrontation case law, there had been no constitutional error at Jensen’s

trial. Whether that court was correct is a matter outside the limited scope of the issue

presented here—whether the State complied with the conditional writ.

Further, Jensen is wrong that the Seventh Circuit’s decision allowed the state

courts to overrule the federal judgments on his confrontation claim. The federal

judgment here is the conditional writ granting habeas relief, not the opinions

addressing his claim. See Jennings, 574 U.S. at 277 (stating that, on appeal, a court’s

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judgment, not its opinion, is under review; “[a] prevailing party seeks to enforce not

a district court’s reasoning, but the court’s judgment.”). The district court determined

that its judgment required the State only to begin retrial proceedings and that the

State had complied with that order. Moreover, the case Jensen relies on to assert that

a state court cannot overrule a federal judgment, Deposit Bank of Frankfort v. Bd. of

Councilmen of Frankfort, 191 U.S. 499, 517 (1903), does not involve habeas corpus

litigation. (Pet. 21.) It thus does not show that the Seventh Circuit’s opinion conflicts

with any decision of this Court.

And even if the federal opinions on Jensen’s claim were relevant, the trial court

did not contradict them. The trial court determined that Julie’s letter and statements

were not testimonial. The district court and the Seventh Circuit did not resolve this

issue. Both courts assumed that the evidence was testimonial and instead found error

in the state court’s findings of harmlessness. Jensen has pointed to no decision of this

Court that prevented the state trial court from reassessing a prior state-court decision

that the evidence was testimonial based on current law when the federal habeas

decisions were silent on the issue.

Jensen also cites United States v. Ayers, 76 U.S. 608, 610 (1869), to say that an

order granting a new trial vacates the former judgment and leaves the parties as if

no trial had taken place. (Pet. 17.) But the conditional writ here did not grant Jensen

a new trial. And Ayers involves an appeal from the Court of Claims, not the

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interpretation of a grant of habeas corpus relief to a state prisoner, so it does not

conflict with the Seventh Circuit’s opinion. Ayers, 76 U.S at 609.

Next, Jensen asserts that the trial court’s reasoning that it needed only to

initiate proceedings to comply with the writ was “sophistry” because starting the

proceedings did not comply with the writ. (Pet. 21–22.) But the writ was directed at

the State, not the trial court. Pollard, 924 F.3d at 455. The district court that issued

the writ determined that the State complied, and the Seventh Circuit affirmed that

decision. And, again, Jensen fails to confront the latter court’s reliance on Jennings’s

warning not to read unstated conditions into writs.

Jensen also argues that the phrase “initiate proceedings” is just a recognition

that a full retrial could not happen within 90 days because of his case’s complexity.

(Pet. 16–17, 22.) He contends that courts routinely use such language and points to

the writ’s language in Pritchess v. Davis, 421 U.S. 482, 483 (1975), as an example.

(Pet. 22 (citing Davis v. Pritchess, 388 F. Supp. 105, 114 (C.D. Cal. 1974)). But Davis

did not involve a claim that the State failed to comply with a conditional writ. On the

contrary, this Court recognized that the State complied with the writ’s language when

it “moved to retry” the petitioner within the specified time period. Davis, 421 U.S. at

483–84. Likewise, the two Seventh Circuit cases that Jensen points to as examples of

writs ordering the State to begin proceedings within a certain time do not involve

claims that the State failed to comply with the writ’s language. (Pet. 22 (citing

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McManus v. Neal, 779 F.3d 634, 660 (7th Cir. 2015), and Jones v. Basinger, 635 F.3d

1030, 1056 (7th Cir. 2011)).)

Next, Jensen points to a district court order that rejected the State’s request

to interpret a conditional writ issued by the Seventh Circuit to require that the State

only decide whether to retry the petitioner within the specified time period. (Pet. 22–

23 (citing United States ex rel. Owens v. Duncan, No. 08-C-7159, 2015 WL 5950124,

at *1 n.1 (N.D. Ill. 2015)).) The Seventh Circuit gave the State “120 days in which to

decide whether to retry” the petitioner or release him. Owens v. Duncan, 781 F.3d

360, 366 (7th Cir. 2015). Despite this language, the district court determined that the

State, to comply with the letter and the spirit of the Seventh Circuit’s order, needed

to “actually initiate retrial proceedings within 120 days” rather than merely deciding

whether to retry him. Duncan, 2015 WL 5950124, at *1 n.1.

Duncan does not help Jensen. It is a district court decision, not a decision of a

federal court of appeals or this Court, so any conflict between it and the Seventh

Circuit’s decision does not justify review. And, anyway, the Duncan decision does not

conflict with the Seventh Circuit’s decision below. The district court in Duncan was

merely interpreting, in its discretion, an order granting habeas relief. Here, the

Seventh Circuit said that the district court was doing the same thing. And whatever

else Duncan says, it does not hold that conditional habeas writs entitle a petitioner

to a retrial no matter the actual language of the writ.

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Finally, Jensen complains that the State has repeated the error from his first

trial by obtaining admission of Julie’s letter and statements, and it continues to hold

him on an invalid judgment. (Pet. 23–24.) This, his says, violates Justice Thomas’s

dissent in Jennings, which argued that a conditional order does not permit entry of

“a new judgment infected by the same constitutional violation that justified the

order’s entry in the first place.” (Pet. 23–24 (quoting Jennings, 574 U.S. at 288).)

According to Jensen, this Court must step in to prevent the State from reinstating

faulty judgments against petitioners who prevail in federal habeas in the future. (Pet.

23–24.)

These arguments do not persuade. Whether Jensen’s reinstated conviction is

based on the same constitutional violation as his original one is one of the issues in

his state-court appeal. As argued, that process should play out before this Court

considers becoming involved. The narrow issue here is whether the district court

erred by interpreting the plain language of the conditional writ. That issue, reviewed

for an abuse of discretion, does not justify this Court’s review.

And Jensen is wrong that states will begin reinstating judgments in response

to grants of habeas relief. Jensen appears to suggest that states will reinstate these

judgments in bad faith to prevent petitioners from getting the relief given by the

federal courts. But here, the trial court acted in good faith, and its decision to

reinstate the judgment was based on the unique facts of this case. Confrontation law

changed several times throughout the proceedings, primarily to Jensen’s advantage.

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But when the case returned to state court, the trial court determined that further

changes to the law had now made Julie’s letter and statements admissible and

reinstated Jensen’s conviction. That decision may be incorrect. But regardless of

whether the trial court was wrong, similar circumstances are unlikely to recur such

that courts would even occasionally have the opportunity to do something like trial

court did. Jensen’s speculation that state courts will routinely undertake such

actions, whether or not in good faith, does not justify this Court’s review.

CONCLUSION

This Court should deny the petition for a writ of certiorari.

Dated at Madison, Wisconsin, this 26th day of May 2020.

Respectfully submitted,

JOSHUA L. KAUL

Attorney General of Wisconsin

SCOTT E. ROSENOW*

Assistant Attorney General

AARON R. O’NEIL

Assistant Attorney General

Attorneys for Respondent

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-3539

(608) 294-2907 (Fax)

rosenowse@doj.state.wi.us

*Counsel of Record

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