Hicks v. Hepp, No. 15-3865 (7th Cir. 2017)
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Hicks admitted to sexually molesting his former stepson, during a recorded phone call from a police station. During the call, before the confession, the victim repeatedly threatened to harm Hicks and to tell Hicks’s other minor son about the abuse. Hicks’s counsel played the entire recorded conversation to the jury. Later, the prosecutor referred to an earlier case in which Hicks had pleaded guilty after being accused of similar conduct. He asked the jury if it was “fair” that Hicks had been permitted to plea bargain to misdemeanors and receive probation and “Is that what should have happened here or should we deal with this?” Hicks’s counsel did not object. Hicks was sentenced to 25 years’ imprisonment. After a failed state collateral challenge, he sought federal habeas relief. The Seventh Circuit affirmed the denial of relief. While the state court unreasonably determined that Hicks’s counsel was credible when he testified that Hicks told him that he did not feel threatened during the call, Hicks did not suffer prejudice from the tape’s admission, because the other evidence of his guilt was sufficient to sustain his conviction. The court stated that it was “very troubled by the state court’s finding” regarding the prosecutor’s statements and defense counsel’s failure to object, but Hicks did not fairly present that claim to the Wisconsin Supreme Court and procedurally defaulted on the claim for relief.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 3865 DOUGLAS G. HICKS, Petitioner Appellant, v. RANDALL HEPP, Respondent Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13 cv 01325 — William E. Duffin, Magistrate Judge. ____________________ ARGUED DECEMBER 9, 2016 — DECIDED SEPTEMBER 7, 2017 ____________________ Before WILLIAMS and HAMILTON, Circuit Judges, and CHANG, District Judge.* WILLIAMS, Circuit Judge. Douglas Hicks admitted to sex ually molesting his victim, a former step son, during a rec orded phone call from a police station. During the call, and * Of the Northern District of Illinois, sitting by designation. 2 No. 15 3865 before the confession, the victim repeatedly threatened to harm Hicks and to tell Hicks’s other minor son about the abuse. Ultimately, Hicks was charged with sexually molesting the victim and tried by a jury. At trial, Hicks’s counsel played the entire 43 minute recorded conversation to the jury. Later, during the state’s rebuttal argument, the prosecutor referred to an earlier case in which Hicks had pleaded guilty after be ing accused of engaging in similar conduct. He asked the jury if it was “fair” that Hicks had been permitted to “plea bar gain[]” down his felony charges to misdemeanors and receive probation as punishment. And then, he asked the jury, “Is that what should have happened here or should we deal with this case?” Hicks’s trial counsel did not object to this clearly im proper argument. The jury returned a verdict of guilty and Hicks was sen tenced to 25 years’ imprisonment. After a failed collateral challenge to his conviction in state court, he filed a petition for habeas relief pursuant to 28 U.S.C. § 2254 in federal court. The district court denied relief, and Hicks now appeals. On appeal he contends that the state court erred when it found that his counsel’s failure to move to suppress the recorded conversa tions, in which he confessed to the crime, did not constitute ineffective assistance of counsel. While we find that the state court unreasonably determined that Hicks’s trial counsel was credible when he testified that Hicks told him that he did not feel threatened during the call, we nonetheless find that Hicks did not suffer prejudice from the tape’s admission, because the other evidence of his guilt was sufficient to sustain his conviction. No. 15 3865 3 Hicks also alleges that it was unreasonable for the state court to conclude that his counsel’s decision not to object dur ing rebuttal was a strategic trial decision. We agree with Hicks that these statements were improper, and are very troubled by the state court’s finding on the issue. Nonetheless, because Hicks did not fairly present this claim to the Wisconsin Su preme Court in his petition for review, we find that he has procedurally defaulted on this claim for relief. As a conse quence, we cannot reach the merits of this claim and affirm the district court’s denial of habeas relief. I. BACKGROUND In April 2005, a 22 year old man named E.J. reported to police that he had been sexually molested as a child by his former stepfather, Douglas Hicks (“Hicks”). E.J. stated that the sexual abuse began in 1996 when he was only 11 years old and continued until 1999. In total, there were 100 to 120 sepa rate incidents of sexual abuse. Almost a year after first report ing the abuse to police, E.J. worked with Investigator Dale Ja nus of the Oconto County Sheriff’s Department to obtain a confession from Hicks. At Investigator Janus’s suggestion, E.J. agreed to a one party consent taped phone call. On February 6, 2006, E.J. telephoned Hicks from the Oconto County Sheriff’s station. Before placing the call, Inves tigator Janus provided E.J. with guidance on how to get Hicks to make an incriminating statement. While Investigator Janus told E.J. to take a softer approach with Hicks on the phone, he also stated that “there wasn’t anything he could really say wrong. Whatever [E.J.] felt he needed to say was okay.” R. 17 4 No. 15 3865 15 at 26.1 After providing these instructions, Investigator Ja nus both listened to and recorded the conversation. Hicks answered the phone while he was driving a com pany car with a new employee that he was training. The call lasted 43 minutes and was the first time that E.J. had con fronted Hicks about the abuse. During the call, E.J. made var ious attempts to get Hicks to admit to the abuse. These at tempts included making a number of threats including: threats of death or bodily injury, general threats regarding negative consequences, threats to go to the police, and threats of continued harassment. While Hicks tried to end the call a number of times, he never did. And, while he generally de nied the abuse, he also asked if they could discuss the issue in person, and made other statements that suggested E.J.’s alle gations were true. Towards the end of the call, E.J. changed his approach and made a reference to Hicks’s minor son, A.H., who was E.J.’s step brother—born to Hicks and Wendy Lambert, E.J.’s mother. Although no longer married, Hicks and Lambert shared custody of A.H. During the call, E.J. threatened to tell A.H. about the abuse he endured at Hicks’s hands. After mak ing this threat, the following exchange occurred: E.J.: All you need to do is say you’re sorry. Say you’re sorry and we can all go back to this being like normal and you will never hear from me again and there’ll never be any more problems like this, and I’ll play ball with it and keep 1 All record citations are to the record in the United States District Court for the Eastern District of Wisconsin. No. 15 3865 5 things the way you want them whenever an other investigation like this pops up because I’m sure there’s you know more children that you want to molest. Hicks: E.J., I am sorry. E.J.: You’re sorry for what, come on, go forward, you’re sorry for what. Hicks: Just, you just told me to say it, I’m sorry. E.J.: No say I’m sorry for sexually molesting you. This isn’t going to end until you reach that point. We got the sorry part out now we just need to end the sexually molesting me part. Hicks: That’s going to keep you from uh, trying to upend, upend on [my son]. E.J.: Yes it will if you want to see your child again, if you don’t want him to ever know about this you’re going to say it. You’re going to say E.J. I’m sorry for sexually molesting you. Hicks: E.J., I’m sorry for molesting you. R. 23 1 at 20–21. Several weeks after the recorded conversation, Hicks met with Investigator Janus. During that meeting, Hicks denied ever sexually molesting E.J. When told of the recording, Hicks stated that he had felt threatened by E.J. and only admitted to abusing E.J. because he felt threatened. In June 2016, Hicks was charged with the repeated sexual assault of E.J., in viola tion of Wis. Stat. § 948.025(1). 6 No. 15 3865 A. Pretrial Proceedings Hicks retained Attorneys K. Richard Wells and Gerald Boyle, members of the same firm, as trial counsel. Before trial, the government asked the court to hold a Miranda Goodchild hearing to determine the admissibility of Hicks’s recorded statements.2 Hicks’s counsel did not object to the hearing. Ra ther, Wells stated on the record that he agreed with the proce dure “[a]lthough we’re not really challenging the statements and its (sic) voluntariness.” R. 17 12 at 4. Nonetheless, Wells believed that they “need[ed] to make a record about it.” Id. The court held the Miranda Goodchild hearing. During the hearing, Investigator Janus testified about his investigation and the recording he made of E.J. and Hicks’s conversation. Wells neither offered evidence nor made any argument on Hicks’s behalf. At the end of the hearing, the court concluded that under the totality of the circumstances, Hicks’s state ments were voluntary and therefore, admissible at trial. B. Hicks’s Criminal Trial In March 2007, Hicks, represented by Wells and Boyle, was tried before a jury. At trial, the government’s first two wit nesses were brothers who had also been molested by Hicks as children. The court admitted their testimony for the sole pur pose of establishing Hicks’s motive. Each brother detailed 2 A Miranda Goodchild hearing is conducted to determine the admissi bility of confessions, see State v. Jiles, 663 N.W.2d 798, 806–07 (Wis. 2003) (discussing the purpose of a Miranda Goodchild hearing), and is named af ter Miranda v. Arizona, 384 U.S. 436 (1966) and State ex rel. Goodchild v. Burke 133 N.W.2d 753 (Wis. 1965). No. 15 3865 7 how the abuse occurred. Though Hicks was prosecuted on fel ony charges for these sexual assaults, that trial resulted in a hung jury. Ultimately, Hicks entered an Alford3 plea to two re duced misdemeanor charges related to the charged conduct: the intent to contribute to the delinquency of a minor and ex posing one’s genitals to a child. As a result, Hicks was sen tenced to probation, which was eventually revoked for rea sons not in the record, and Hicks served six months in jail. The government also called E.J. to testify. He gave the jury a graphic account of the repeated abuse, providing vivid de tail about three specific incidents. These details included where in the house the abuse occurred, who else was present in the home, what movies he was watching prior to the abuse, and the nature of the sexual acts that Hicks performed on him and those he was forced to perform on Hicks. Although he only provided this level of detail with regards to three inci dents, he testified that there were approximately 100 to 120 separate incidents of abuse over a three year period, occur ring on an almost weekly basis. On direct examination, E.J. also testified about the rec orded telephone conversation he had with Hicks. He acknowledged that the call was an angry one, in which he thought the best way to get Hicks to admit to the abuse was to “push him.” R. 17 14 at 12. He also acknowledged making threats on the call. Id. Before cross examination of E.J., the de fense played the entirety of the 43 minute recorded conversa tion for the purpose of “completeness.” Later, the prosecution 3 An Alford plea allows a criminal defendant to enter a guilty plea while maintaining his innocence, as approved by the Supreme Court in North Carolina v. Alford, 400 U.S. 25 (1970). 8 No. 15 3865 called Investigator Janus, who testified about and recounted portions of the recorded conversation from the stand. Lambert, Hicks’s ex wife, also testified for the prosecution. She first learned about the abuse in April 2005 around the time that E.J. reported it to the police. Almost a year later, in February 2006, she confronted Hicks as part of Investigator Janus’s investigation. After she confronted him, Hicks admit ted to abusing E.J. But, he also provided an excuse: his actions were the result of the sexual abuse he had both experienced and witnessed as a child. After this conversation, Hicks called Lambert two more times to apologize and to attempt to speak to E.J. in hopes that he might drop the allegations. After the prosecution rested, Hicks testified in his own de fense. He addressed the brothers’ statements that he had sex ually assaulted them when they were children. While he ad mitted that he had been charged with two felonies as a result of their allegations, he reiterated that the felony trial had ended in a hung jury. Because he had wanted to vindicate his name, Hicks reluctantly entered into the Alford plea. Hicks addressed the recording in which he confessed to sexually molesting E.J. He stated that he found the conversa tion “shocking,” but once E.J. threatened to take his allega tions to his son A.H., “that was it. I told him what he wanted to hear. I asked him what he wanted to hear, and I told him what he wanted to hear.” R. 17 15. at 166, 172. During closing arguments, Wells urged the jury not to credit Hicks’s confession on the tape, arguing, “What you heard in that tape is what went down. It was threatening. It was mean spirited. It was horrible. And there were multiple No. 15 3865 9 denials of anything by Mr. Hicks.” R. 17 16 at 89. He also re minded the jury that it could consider the testimony of the two brothers only for the purpose of motive, not as evidence of Hicks’s guilt in the instant case. However, during its rebuttal argument, the prosecution made a very explicit reference to the previous charges that Hicks faced. After referring to Hicks’s Alford plea, the prose cutor stated, “And was that a fair resolution what happened? Plea bargaining it down to a couple of misdemeanors. Is that what should have happened here or should we deal with this case?” Id. at 108. The prosecutor concluded by asking the jury to “judge [Hicks] on his words … [E.J.] I’m sorry for molesting you.” Id. at 111–12. During deliberations, the jury submitted a question, ask ing the court to reveal why Hicks’s probation in his previous case had been revoked. The court declined to answer the question, noting that there was no evidence placed on the rec ord as to why. Later that day, the jury found Hicks guilty of the repeated sexual assault of E.J. He was sentenced to 25 years in prison, which he is currently serving. C. Post Conviction Hearing in Wisconsin Trial Court Hicks moved for post conviction relief in the Wisconsin trial court.4 He challenged the admissibility of the recorded conversation and alleged that his counsel was ineffective for failing to object to: (1) the admission of the recorded state ment; and (2) the prosecutor’s closing argument regarding his 4 Wisconsin law requires that a defendant pursue a motion for post conviction or postdisposition relief in the trial court before filing the di rect appeal if the basis for relief was not previously raised. Wis. Stat. § 809.30(h). 10 No. 15 3865 Alford plea. Wells testified at a post conviction hearing held pursuant to State v. Machner, 285 N.W.2d 905 (Wis. App. Ct. 1979) (holding that, as a prerequisite to a claim of ineffective assistance of trial counsel, subsequent counsel must require trial counsel s presence and testimony at the hearing in which his or her conduct is challenged). Although Wells testified that E.J. made approximately 20 threats to Hicks on the re cording, he believed that the telephone conversation was “to tally voluntary” and that Hicks could have ended the call at any time. R. 23 2 at 11. Wells also testified that Hicks told him that despite the threats, he did not feel coerced, pressured, or intimidated in any way. Yet, Wells’s memory of facts about the trial was contra dicted by the record. The record reflected that Wells delivered both the opening and closing statements and examinations of the witnesses, but he testified at the Machner hearing that he and Boyle shared the witnesses. He also testified that Boyle delivered both the opening and closing statements. Hicks testified at the Machner hearing and denied ever tell ing his trial counsel that he did not feel threatened by E.J. Ra ther, he testified that he had explicitly told trial counsel that he felt threatened by E.J. and that E.J.’s threats to tell A.H. were what ultimately caused him to give E.J. the apology he demanded. After the hearing, the trial court concluded that the state ments made in the recording were voluntary and that Wells’s decision not to object to the prosecutor’s closing argument was a reasonable strategic decision. The court, therefore, de nied Hicks’s request for a new trial. No. 15 3865 11 D. Hicks’s First State Appeal (Hicks I) Hicks appealed his two ineffective assistance of counsel claims to the Wisconsin Court of Appeals. While the appellate court found that the prosecutor’s statements about Hicks’s Al ford plea were improper, it agreed with the trial court that Wells’s decision not to object was a reasonable strategic deci sion. However, the appellate court disagreed with the trial court’s determination that Hicks’s statements on the phone call were admissible and its conclusion that Wells’s failure to object to their admissibility did not constitute the ineffective assistance of counsel. Rather, the appellate court determined that E.J. was acting as a police agent during the call. As a po lice agent, E.J. made “impermissible threats of physical harm and psychological intimidation … threats that no police of ficer would be allowed to make in order to secure incriminat ing statements.” R. 17 5 at 4. Therefore, the appellate court re manded the case to the trial court to determine whether the statements were voluntary pursuant to State v. Clappes, 401 N.W.2d 759 (Wis. 1987) (applying the totality of the circum stances analysis to determine whether a confession is volun tary). On remand, the trial court held a hearing to determine whether the statements were made voluntarily. At that hear ing, Hicks testified about specific incidents of harassment and a job loss that he experienced as a result of his previous case. Based upon this experience, Hicks testified that he knew he could “lose it all again” if E.J. simply took his claims to the police. R. 17 9 at 6. Nonetheless, the trial court, determined that under the totality of the circumstances, Hicks’ statements were the “product of free and unconstrained will, reflecting 12 No. 15 3865 deliberateness of choice” and were, therefore, voluntary and admissible at trial. E. Hicks’s Second State Appeal (Hicks II) Hicks once more appealed the trial court’s determination that the statements were voluntary to the Wisconsin Court of Appeals, which affirmed. The appellate court found that be cause Hicks did not know that E.J. was a police agent, there was “simply no pressure to comply with police authority.” R. 17 19 at 9. Further, the appellate court concluded that E.J.’s threat to tell A.H. about the abuse was not coercive. In fact, the court viewed this specific threat as the “least problem atic.” Id. at 10. If the allegations were false, the appellate court concluded that they carried no coercive weight. But if they were true, then the threat to report was not “impermissibly coercive in a constitutional sense.” Id. To reach these conclu sions, the appellate court credited Wells’s testimony over that of Hicks. Lastly, the appellate court addressed Hicks’s state law claim that a new trial was warranted in the “interest of justice” because of the prosecutor’s improper closing argument. The troubling statements comprised only three sentences in an 11 page closing argument, which the jury was instructed it could not consider as evidence. Therefore, based upon the totality of the evidence, the appellate court was “satisfied that the real controversy—assessing the credibility of the accuser and accused—was fully tried in this case.” Id. at 12. F. Hicks’s Petition for Review with the Wisconsin Su preme Court In January 2013, Hicks, who was represented by counsel, filed a petition for review with the Wisconsin Supreme Court. No. 15 3865 13 He listed four issues. The first two related to the appellate court’s determination that the statements were voluntary and, therefore, admissible at trial. The third issue asked the court to address his state law claim that he was entitled to a new trial because the prosecutor’s improper comments prevented the real controversy from being tried. In his fourth issue, Hicks raised his ineffective assistance of counsel claim based upon Wells’s failure to object to the prosecutor’s improper argument. On that issue, he asked the court to determine whether “trial counsel’s failure to object to the prosecutor’s improper closing arguments constitute[d] in effective assistance of counsel.” R. 17 10 at 5. While he pro vided no argument, after discussing the prosecutor’s im proper argument in the section of the petition entitled, “Rea sons for Granting Review,” he stated: The petitioner recognizes the legal standards on this issue are clearly developed, and therefore, this issue would likely not justify review inde pendently absent the other issue raised, pursu ant to the standards set by Wis. Stat. § 809.62. Hicks must nonetheless raise these claims here to preserve them for federal habeas review. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Id. at 7. He also seemingly mentioned the claim in the last sen tence in his argument addressing his state law claim based upon the prosecution’s closing arguments. There he stated, “[l]ikewise, counsel’s decision not to object was not a reason able strategic decision.” Id. at 27. On March 13, 2013, the Wisconsin Supreme Court denied Hicks’s petition for review. 14 No. 15 3865 G. Hicks’s Federal § 2254 Petition Hicks filed a pro se petition for a writ of habeas corpus on November 22, 2013 in the United States District Court of the Eastern District of Wisconsin.5 In his petition, he raised two grounds for relief. First, he contended that his trial counsel rendered ineffective assistance of counsel by failing to chal lenge pre trial, the admissibility of the recorded conversation. Second, he asserted that his trial counsel was ineffective for failing to object to the prosecutor’s improper statements dur ing closing. While the district court concluded that the Wisconsin Court of Appeals made an unreasonable determination of fact when it concluded that Wells’s testimony was more credible than Hicks’s, it nonetheless denied the writ, finding that Hicks was not prejudiced by Wells’s failure to move to suppress the statements. The district court also held that because Hicks had not adequately presented his second ineffective assistance of counsel claim in his petition to the Wisconsin Supreme Court, the doctrine of procedural default barred its review. The district court issued a certificate of appealability for both issues and this appeal followed. II. ANALYSIS Our review is governed (and greatly limited) by the Anti terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See, e.g., Harper v. Brown, No. 15 2276, 2017 WL 3224907, at *2 5 Both parties consented to magistrate jurisdiction pursuant to 28 U.S.C. § 636(c) and the case was assigned to and decided by Magistrate Judge William E. Duffin. No. 15 3865 15 (7th Cir. July 31, 2017) (noting that AEDPA provides a “de manding standard” that must be met before a petitioner may receive relief). In enacting AEDPA, Congress modified a fed eral court’s role in reviewing state court convictions to “pre vent federal habeas ‘retrials’ and to ensure that state court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Therefore, AEDPA estab lishes a deferential standard, see, e.g., Stechauner v. Smith, 852 F.3d 708, 714 (7th Cir. 2017), and we will not lightly conclude that habeas relief is necessary. Burt v. Titlow, 134 S. Ct. 10, 16 (2013); see also Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (“If this standard is difficult to meet, that is because it was meant to be.”). Pursuant to the statute, when a state court has adjudicated a claim on the merits, AEDPA permits a federal court to issue a writ of habeas corpus in only two situations. See 28 U.S.C. § 2254(d). First, a writ may issue if the petitioner establishes that the state court decision was “contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States … .” § 2254(d)(1). A decision “contradicts clearly established law if it applies a legal standard inconsistent with governing Su preme Court precedent or contradicts the Supreme Court s treatment of a materially identical set of facts.” Rodriguez v. Gossett, 842 F.3d 531, 537 (7th Cir. 2016) (citing Bell, 535 U.S. at 694). Unreasonable application of clearly established law occurs if a state court identifies the correct legal rule, yet applies it in an objectively unreasonable manner. Id. (citing Yarborough v. Gentry, 540 U.S. 1, 5 (2003)). This requires that the state court 16 No. 15 3865 do more than just get it wrong; “even clear error will not suf fice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2014)) (internal quota tion marks omitted). This is a high burden and a petitioner must “show that the state court s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in ex isting law beyond any possibility for fairminded disagree ment.” Id. (quoting Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011)) (internal quotation mark omitted). Second, a writ may issue if the petitioner establishes that the state court decision was “based on an unreasonable deter mination of the facts in light of the evidence in the State court proceeding.” § 2254(d)(2). A finding of fact, however, is not unreasonable simply because a federal habeas court would have reached a different conclusion. Burt, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Rather, a pe titioner must rebut the state court’s factual findings by “clear and convincing evidence.” Id. at 299 (quoting § 2254(e)(1)); see also Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009) (noting that a state court’s factual findings are presumed to be correct, unless the petitioner “rebuts them with clear and convincing evidence.”). We review a district court’s denial of habeas relief de novo, and its factual findings for clear error. Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005). Additionally, our review is of the decisions of the highest state court to address the claims on their merits, Stechauner, 852 F.3d at 714 (quoting Harris v Thompson, 698 F.3d 609, 623 (7th Cir. 2012)), here Hicks I and II. No. 15 3865 17 A. Hicks’s Ineffective Assistance of Counsel Claims Hicks’s petition advances two ineffective assistance of counsel claims.6 Hicks’s claims are governed by the well established principles that the Supreme Court articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland’s two prong standard, to assert a successful claim of ineffective assistance of counsel, a petitioner must first demonstrate that counsel’s performance was deficient. Smith v. Brown, 764 F.3d 790, 795 (7th Cir. 2014). This requires that the petitioner demonstrate that counsel’s representation fell below an objective standard of reasonableness. See Barrow, 398 F.3d at 603 (noting that a petitioner “must show that the performance of counsel fell outside the range of competence demanded of attorneys in criminal cases—i.e., that it fell below an objective standard of reasonableness.”) (quoting Strickland, 466 U.S. at 687–88) (internal quotation marks omitted). What is objectively reasonable is determined by the pre vailing professional norms. Pole, 570 F.3d at 934. At the same time, there is “significant latitude for permissible attorney conduct,” Mosley v. Atchison, 689 F.3d 838, 847–48 (7th Cir. 2012), and we presume, “under the circumstances, the chal lenged action might be considered sound trial strategy.” Id. (quoting Strickland, 466 U.S. at 689) (internal quotation mark omitted). This is a highly deferential inquiry; “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable 6 Although articulated as two separate claims, which we will address in turn, “ineffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed.” Pole, 570 F.3d at 934 (quoting Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)) (internal quotation marks omitted). 18 No. 15 3865 professional judgment.” Strickland, 466 U.S. at 690; see also Mosley, 689 F.3d. at 848 (“To avoid the inevitable temptation to evaluate a lawyer s performance through the distorting lens of hindsight, Strickland establishes a deferential presumption that strategic judgments made by defense counsel are reason able.”). Second, a petitioner must demonstrate that counsel’s defi cient performance prejudiced his defense. Stitts v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013). This requires the petitioner to demonstrate a “reasonable probability that, but for counsel’s unprofessional errors,” the outcome would have been differ ent. Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citation omitted). If the error had no effect on the final judgment, then relief is not warranted, as the Sixth Amendment’s “guarantee of counsel is to ensure that a defendant has the assistance nec essary to justify reliance on the outcome of the proceeding.” Strickland, 466 U.S. at 691–92. A petitioner who seeks habeas relief due to the ineffective assistance of counsel faces a high hurdle. The Supreme Court has instructed that under these circumstances, we must em ploy a “doubly deferential” standard, one which “gives both the state court and the defense attorney the benefit of the doubt.” Burt, 134 S. Ct. at 13 (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)). And, as Strickland provides “a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123. No. 15 3865 19 1. Failure to File Motion to Suppress Recorded Conversation Hicks asserts that Wells rendered ineffective assistance of counsel by failing to move to suppress the recorded conver sation in which he confessed to molesting E.J. The State urges us to conclude that Hicks did not assert this claim in his peti tion before the Wisconsin Supreme Court, and therefore, the doctrine of procedural default precludes us from reaching its merits. But, by defending this claim on the merits to the dis trict court, while simultaneously arguing to the district court that Hicks had procedurally defaulted on his second claim, the State implicitly waived the defense of procedural default. See Perruquet v. Briley, 390 F.3d 505, 516 (7th Cir. 2004) (“where the State has responded to one habeas claim on its merits while asserting that another is procedurally barred, it has im plicitly waived any contention that the first claim is also pro cedurally defaulted.”). Therefore, we will address this claim on the merits. To successfully advance a claim of ineffective assistance of counsel based upon the failure to file a motion to suppress, a petitioner must demonstrate that “there was both a reasona ble probability that he would have prevailed on the motion to suppress and a reasonable probability that, if his confessions were suppressed, he would have been acquitted.” Bynum v. Lemmon, 560 F.3d 678, 685 (7th Cir. 2009) (citing Strickland, 466 U.S. at 694); see also United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005) (“When the claim of ineffective assistance is based on counsel’s failure to present a motion to suppress, we have required that a defendant prove that the motion was meritorious.”). 20 No. 15 3865 a. The State Court Unreasonably Determined There was No Impermissible Coercion “A foundational principle of due process of law is that the state cannot procure a criminal conviction through the use of an involuntary confession.” Carrion v. Butler, 835 F.3d 764, 775 (7th Cir. 2016) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 223–26 (1973)); see also United States v. Vallar, 635 F.3d 271, 282 (7th Cir. 2011). A confession is voluntary if “it is the product of a rational intellect and free will and not the result of phys ical abuse, psychological intimidation, or deceptive interroga tion tactics that have overcome the defendant’s free will.” Val lar, 635 F.3d at 282 (quoting United States v. Gillaum, 372 F.3d 848, 856–57 (7th Cir. 2004)) (internal quotation marks omit ted). To determine whether a confession is voluntary, the court must analyze “the totality of all the surrounding cir cumstances—both the characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226; see also Murdock v. Dorethy, 846 F.3d 203, 209 (7th Cir. 2017). Fur ther, “coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment.” United States v. Sturdivant, 796 F.3d 690, 695 (7th Cir. 2015) (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)) (inter nal quotation marks omitted). We evaluate coercion from the perspective of a reasonable person in the suspect’s position. United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001). In doing so, we consider “the de fendant s age, education, intelligence level, and mental state; the length of the defendant s detention; the nature of the in terrogations; the inclusion of advice about constitutional No. 15 3865 21 rights; and the use of physical punishment, including depri vation of food or sleep.” Sturdivant, 796 F.3d at 695 (quoting Huerta, 239 F.3d at 871) (internal quotation marks omitted). Hicks argues that the state court erred when it determined that he did not feel threatened by E.J. during the call. The Wis consin Appellate Court cited to only state court decisions when it evaluated whether Hicks’s confession was voluntary. See R. 17 9 at 8–9. But, this is of no impact to our reasoning because, in doing so, the Wisconsin Appellate Court applied the same totality of the circumstances test that applies when evaluating whether a Due Process Clause violation occurred. See, e.g., State v. Clappes, 401 N.W.2d 759, 766 (Wis. 1987) (not ing that the court must evaluate the totality of the circum stances to determine whether a confession is voluntary by “balanc[ing] the personal characteristics of the defendant against the pressures imposed upon him by police in order to induce him to respond to the questioning.”). In Hicks I, the state appellate court noted that E.J. “applied impermissible threats of physical harm and psychological intimidation. He made threats that no police officer would be allowed to make in order to secure incriminating statements.” R. 17 5 at 4. The petitioner argues at length that the Wisconsin Court of Appeals erred in Hicks II when it determined that that E.J.’s threat to take his allegations to A.H. was not impermissibly coercive. “[T]hreats to a suspect’s family or children, even if implicit, certainly may render confessions involuntary,” Sorn berger v. City of Knoxville, Ill., 434 F.3d 1006, 1023 (7th Cir. 2006) (citing Lynumn v. Illinois, 372 U.S. 528, 533 (1963)). In Lynumn, the Supreme Court found that the defendant’s confession was involuntary when it was made “only after the police had told her that state financial aid for her infant children would be cut 22 No. 15 3865 off, and her children taken from her, if she did not ‘cooper ate.’” Lynumn, 372 U.S. at 534. While we agree with Hicks that the appellate court seemingly ignored his prior experience with law enforcement when he faced the earlier charges, we are not persuaded that the court unreasonably applied federal law when it concluded these threats were not impermissibly coercive. But, as we will discuss below, this does not foreclose our finding that Hicks has established the first Strickland prong. In Hicks II, the appellate court concluded that Hicks’s state ments were made voluntarily. See R. 17 9 at 11. To do so, the appellate court accepted Wells’s testimony over Hicks’s testi mony regarding whether he felt threatened by E.J. It further noted that “[i]f the trial court had concluded that Hicks actu ally felt threatened by the numerous threats of physical vio lence, it would have been compelled to conclude Hicks’s state ments were involuntary.” Id. at 9 n.2. We find the appellate court’s conclusion in Hicks II that Wells’s testimony was more credible than Hicks’s problematic, as it is rebutted by clear and convincing evidence: the transcript from trial. Wells testified at the Machner hearing that his role during trial was somewhat limited. He stated that he delivered nei ther the opening statement nor the closing argument. He also testified that he split the witnesses with Boyle. But, the record reflects the opposite. Instead, what the trial transcript reveals is that Wells delivered both the opening and closing state ments and handled all of the witnesses. In light of the patently false testimony that Wells provided about readily verifiable facts, it was unreasonable for the state court to credit his tes timony over that of Hicks. Moreover, as the district court noted, Wells’s testimony that Hicks told him he did not feel No. 15 3865 23 threatened by E.J. stands in contradiction to his actions at trial. If he knew that Hicks did not feel threatened by E.J., then Wells allowed Hicks to perjure himself on the stand when he testified to the contrary. See R. 17 15 at 165–66 (asking Hicks if he heard E.J. threatening him and whether he felt threatened, to which Hicks responded, “Yes.”). Additionally, if he knew that Hicks did not feel threatened, soliciting this information on the stand would have flown in the face of Wells’s theory of the case at trial—that this was a threatening call that elicited a false confession. Wells’s testimony was the only direct evidence that contra dicted Hicks’s testimony and his statements to others about how he felt during the call. When initially interviewed, Hicks told Investigator Janus that he had felt threatened by E.J. dur ing the call. He also testified at trial that he felt threatened by E.J., an assertion that he later repeated to the pre sentence in vestigator assigned to his case. The Supreme Court was clear: a credible threat of physical violence by a government agent is sufficient to establish coer cion. Arizona v. Fulminante, 499 U.S. 279, 287 (1991). The State does not dispute, and we agree, that E.J. was acting as a police agent during the recorded conversation. If not, our inquiry here would end, as the Due Process Clause prohibits only state actors from using coercion to elicit a confession. See Col orado v Connelly, 479 U.S. 157, 164 (1986) (“Absent police con duct casually related to the confession, there is simply no ba sis for concluding that any state actor has deprived a criminal defendant of due process of law.”). As the Wisconsin Court of Appeals noted in Hicks I, E.J. made threats during the call that a police officer would never be permitted to make to elicit a confession. For example, E.J. 24 No. 15 3865 stated, “you’re going to f***ing talk to me about this right now, or you (sic) going to have like maybe 30 days to live, alright.” R. 23 1 at 4. He also stated that he knew ex KGB agents that might harm Hicks, id., and implied that a child molester like Hicks would not fare well in prison. Id. at 11. It was objectively unreasonable for the state court to conclude that these threats were not coercive based upon Wells’s testimony that Hicks did not feel threatened. Likewise, it was unreasonable for the state court to therefore conclude that Wells’s decision not to challenge the admissibility of the recorded statements was permissible trial strategy. Therefore, Hicks has established that the state court’s factual basis for its conclusion regarding the first prong of the Strickland analysis was unreasonable. b. No Prejudice in Failing to File Motion to Suppress Because the state court did not address whether Wells’s failure to object to the admission of the recorded statement was prejudicial to Hicks, we review this prong of the Strick land analysis de novo. See Porter v. McCollum, 558 U.S. 30, 39 (2009) (citing Rompilla v. Beard, 545 U.S. 374, 390 (2005)). Hicks maintains that his confession played an outsized role in his trial, and if it had not been admitted into evidence the jury would have returned a verdict of not guilty. We disagree. As a threshold matter, it is not clear that the entire tran script and tape would have been suppressed had Wells filed such a motion. Before E.J. made any threats, he asked Hicks why he had sexually molested him as a child. Hicks made an inaudible response and then stated, “Um, can I uh, talk to you later?” R. 23 1 at 4. This statement could still have been pre sented to the jury had a motion to suppress been successful. The jury could infer guilt from Hicks’s failure to immediately No. 15 3865 25 deny E.J.’s allegation, one which was surely inflammatory and would have invoked a visceral response if untrue. And, while we do not doubt the prejudicial nature of Hicks’s confession, the record overwhelmingly supports the jury’s guilty verdict. His confession was only a portion of the evidence the state offered against him at trial. E.J. testified in vivid detail about the abuse he endured. His testimony was graphic. He detailed for the jury the nature of the sexual acts, where he was in the home when they occurred and provided other details that supported the veracity of his testimony. There was also motive testimony provided by his two prior victims, who testified that they both were abused in a similar manner to E.J. Lambert, testified that when she confronted Hicks with E.J.’s allegations, Hicks admitted to the abuse, even providing a justification for his actions. Despite Hicks’s claims to the contrary, this evidence simply cannot be consid ered “weak.” We cannot say that there was a reasonable prob ability that the jury would have found Hicks not guilty had the statements in the recorded conversation been suppressed. Therefore, we reject Hicks’s claim of ineffective assistance of counsel based upon Wells’s failure to move to suppress the recorded the conversation and find that habeas relief is not warranted on this claim. 2. Failure to Object to the Prosecutor’s Improper Statements Hicks also asserts that he is entitled to habeas relief be cause Wells’s failure to object to the prosecutor’s improper closing argument constituted ineffective assistance of coun sel. During his rebuttal closing argument, the prosecutor ref erenced Hicks’s Alford plea, stating that Hicks wanted the jury to believe that he did not “really have a criminal record.” R. 26 No. 15 3865 17 16 at 108. And then he asked the jury, “And was that a fair resolution for what happened? Plea bargaining it down to a couple of misdemeanors. Is that what should have happened here or should we deal with this case?” Id. While deliberating, the jury submitted a question to the court about Hicks’s pro bation revocation in that earlier case. The court responded that there was no record evidence on why probation was re voked, and the jury returned later that day with a guilty ver dict. Like the Wisconsin Court of Appeals, we are very troubled by these comments. See R. 17 5 at 6. The prosecutor’s state ments were improper: the prosecutor invited the jury to con vict Hicks in the current case because he had not been appro priately punished in his earlier case. And, because there was no objection, the jury was left with these questions posed just before it went to deliberate. Furthermore, it is clear that the jury at least contem plated—if not wholly accepted—the prosecutor’s suggestion, as evidenced by the question it submitted during delibera tions. We are not convinced by the State’s position that these were merely three sentences in an 11 page closing argument. The length of the statements is not what matters. The issue is their impact, and we are hard pressed to say there was none. But, because, as we discuss further below, Hicks did not fairly present this claim to the Wisconsin Supreme Court for its con sideration in his petition for review, we are barred by the doc trine of procedural default from providing him relief. a. Procedural Default Bars Review of Claim The district court concluded that Hicks has procedurally defaulted on this claim. We review this ruling de novo. No. 15 3865 27 McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013). A peti tioner challenging his state conviction must “exhaust availa ble state remedies before presenting his claim to a federal ha beas court.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (citing §2254(b)); see also § 2254(b)(1)(A) (stating that a writ of habeas corpus “shall not be granted unless it appears that the appli cant has exhausted the remedies available in the courts of the State.”). The exhaustion requirement is “grounded in princi ples of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991) holding modified by Martinez v. Ryan, 566 U.S. 1 (2012); see also Rose v. Lundy, 455 U.S. 509, 518 (1982) (“The ex haustion doctrine is principally designed to protect the state courts role in the enforcement of federal law and prevent dis ruption of state judicial proceedings.”). Therefore, a petitioner must “fairly present” his constitu tional claims through at least one complete round of the state’s established appellate review process before presenting the claims to a federal court for habeas review. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Lombardo v. United States, 860 F.3d 547, 555 (7th Cir. 2017). This includes present ing the claims to the state’s highest court in a petition for dis cretionary review. Boerckel, 526 U.S. at 848. For a claim to be “fairly presented,” the petitioner must place before the state court both the controlling law and the operative facts in a manner such that “the state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to re solve the issue on that basis.” McDowell, 737 F.3d at 482 (inter nal quotation marks and citations omitted). The failure to ex haust a claim or set of claims, results in procedural default, Oaks v. Pfister, No. 15 2924, 2017 WL 2991742, at *2 (7th Cir. 28 No. 15 3865 July 14, 2017) (citing O’Sullivan, 526 U.S. at 845), and we will not consider a procedurally defaulted claim on the merits. Lombardo, 860 F.3d at 555 (citing Martinez, 566 U.S. at 9–10). There are limited exceptions to this rule that would allow us to reach the merits of a procedurally defaulted claim. The first exists where “the petitioner can demonstrate both cause for and prejudice stemming from [the] default.” Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Alternatively, a court may reach a procedurally defaulted claim if the peti tioner can demonstrate that “a miscarriage of justice would result if habeas relief is foreclosed.” Id. This requires that the petitioner demonstrate that he is “actually innocent of the of fenses for which he was convicted, i.e., that no reasonable ju ror would have found him guilty of the crime but for the er ror(s) he attributes to the state court.” Id. (citing Schlup v. Delo, 513 U.S. 298, 327–29 (1995)). The petitioner, however, has not advanced any argument that these exceptions should apply here. Therefore, any argument that these exceptions apply has been forfeited and we will not endeavor to construct a legal argument on Hicks’s behalf. See Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (“Neither the district court nor this court are obliged to research and construct legal arguments for parties, especially when they are represented by coun sel.”). While Hicks concedes that he could have done more to elaborate upon his claim, he nonetheless argues that this claim was fairly presented to the Wisconsin Supreme Court for two main reasons. First, because it was listed as its own stand alone issue in the “Issues Presented for Review” section of his petition. Second, he argues that passing references to the claim in both the section entitled “Reasons for Granting No. 15 3865 29 Review,” and at the end of his state law claim related to the closing argument were sufficient to present the claim. We dis agree. Whether a claim has been fairly presented to a state court is evaluated using four factors: 1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the peti tioner alleged a pattern of facts that is well within the mainstream of constitutional litiga tion. Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). While we use these factors as a guide, our overall “task is to deter mine in practical terms whether the state courts were suffi ciently alerted to the nature of [the petitioner’s] federal con stitutional claim.” White v. Gaetz, 588 F.3d 1135, 1139 (7th Cir. 2009). Here, we find that Hicks has not met that burden. While Hicks does identify this claim as its own stand alone issue in his petition for review, his petition contains no argument whatsoever to support it. Further, his vague and sparse references to the claim in the 26 page petition, were in sufficient to alert the Wisconsin Supreme Court of either the operative facts of the claim or the controlling federal law. For example, on the final page of his petition where he addresses his state law claim based upon the prosecutor’s closing argu ment, he states “[l]ikewise, counsel’s decision not to object 30 No. 15 3865 was not a reasonable strategic decision.” R. 17 10 at 27. But, he does not explain why this is true or cite to any decisions— federal or state—to support this assertion. This was not enough to meet his burden of fairly presenting the claim to the Wisconsin Supreme Court. Because the petition did not allow the Wisconsin Supreme court the opportunity to ad dress this federal constitutional claim, the doctrine of proce dural default precludes our review of the issue on the merits. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief.
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