United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 1, 2011

Decided August 2, 2012

Before

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

WILLIAM M. CONLEY, District Judge

*

No. 10-3499

ROBERT SCHWEINER,

Petitioner-Appellant,

v.

BRIAN FOSTER, Warden, Kettle

Moraine Correctional Institution,

Respondent-Appellee.

Appeal from the

United States District Court for the

Eastern District of Wisconsin.

No. 08-C-1109

William E. Callahan, Jr.,

Magistrate Judge.

O R D E R

The Wisconsin crime of repeated sexual assault of a child requires proof of at least

three separate sexual assaults of the same victim within a specified time. WIS. STAT.

§ 948.025(1). At Robert Schweiner’s trial for this crime, Danielle D. testified that he sexually

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance

with Fed. R. App. P. 32.1

The Honorable William M. Conley, Chief Judge of the United States District Court for the

*

Western District of Wisconsin, sitting by designation.
No. 10-3499 Page 2

assaulted her on three days during the summer of 2002, when she was 13 years old.

Regarding the first episode, she described his repeated acts of sexual contact with two of

her intimate body parts, and a supplemental jury instruction allowed the jury to consider

these as separate assaults. The jury convicted, and Schweiner’s direct appeal was

unsuccessful.

In state postconviction proceedings, Schweiner claimed that the supplemental

instruction omitted a key concept in Wisconsin law that near-simultaneous sexual contacts

with separate body parts do not count as separate sexual assaults. This omission, he

argued, allowed the jury to convict him without proof of every element of the crime, in

violation of his right to due process. The Wisconsin trial and appellate courts rejected this

2

argument, finding that the instruction adequately stated the law based on the evidence

presented at trial. Having exhausted his state remedies, Schweiner petitioned the federal

court for a writ of habeas corpus. A magistrate judge denied relief, and Schweiner

appealed.

We affirm. Schweiner’s argument casts a claimed violation of state law—not

cognizable on federal habeas review—as a federal due-process violation. Under the Due

Process Clause, the prosecution must prove every element of a crime beyond a reasonable

doubt, but the elements of the crime are defined by state law. Here, the state appellate

court held that the supplemental jury instruction was a correct statement of Wisconsin law

based on the facts of Schweiner’s case. That conclusion ends our inquiry.

I. Background

In 2002 Schweiner was in a relationship (its precise nature is unclear) with a woman

named Kim. Kim’s daughter Danielle, then 13 years old, alleged that Schweiner sexually

assaulted her several times that summer. Schweiner was arrested and charged with

repeated sexual assault of the same child. See WIS. STAT. § 948.025(1) (1999-2000). To

convict, the prosecution was required to prove that Schweiner had sexual contact with

Danielle at least three times within a given period of time. See id. If there was evidence of

more than three contacts, the jurors had to agree that at least three sexual contacts

occurred, but they were not required to agree on which particular contacts were proven.

See id. § 948.025(2).

Schweiner also claimed that his trial attorney’s failure to object to the instruction

2

constituted ineffective assistance of counsel. Because we granted a certificate of appealability solely

on the due-process issue, we will refer only to that claim.
No. 10-3499 Page 3

At Schweiner’s trial the prosecutor informed the jury in his opening statement that

he would present evidence of three instances of sexual assault. Danielle then testified that

Schweiner sexually assaulted her on three different days during the summer of 2002. On

the first day, Schweiner took her swimming at a public quarry lake. While they were in the

water, he sexually assaulted her under the pretense of playfully tossing her into the air.

Danielle testified that when Schweiner threw her up out of the water, he started “feeling up

on my bootie,” meaning her buttocks. She said his hands would then “kind of go like

towards the front . . . like towards my . . . vagina.” She said this happened repeatedly while

they were swimming.

The second episode took place during another visit to the lake. Again while they

were swimming, Schweiner removed Danielle’s swimsuit bottom, grabbed her ankle and

pulled her toward him, and inserted his fingers into her vagina. The third episode

occurred in Schweiner’s apartment, where he made Danielle masturbate him.

Schweiner took the stand in his own defense. He testified that Danielle concocted

her story out of personal spite toward him. He denied the substance of the second and

third episodes Danielle described. As to the first episode, he acknowledged tossing

Danielle out of the water but claimed it was innocent horseplay.

Based on Danielle’s testimony, the prosecutor shifted course during his closing

argument and informed the jury that there were four separate sexual assaults because

Schweiner touched two of Danielle’s intimate body parts during the first outing to the lake.

The prosecutor explained that “under the law, touching her vagina and touching her

buttocks when he’s tossing her in the air are—both of those can be distinct offenses. So you

can look at both of those things, but you’re going to have to look at them separately.” The

judge instructed the jury on the offense of repeated sexual assault of the same child and

also on the lesser-included offense of second-degree sexual assault. A verdict of guilty on

the latter crime was appropriate if the jury found that fewer than three sexual contacts

occurred.

During deliberations, the jury sent two questions to the judge. The first asked

whether “the touching of the buttocks or vagina constitute one or two separate charges

towards three sexual assaults.” The second asked, “If we all agree to three of the four

charges of the second degree form, does this constitute three sexual assaults and become

repeated acts of sexual assault of a child[?]” The judge responded with the following

supplemental instruction, to which neither party objected:

If the State proved beyond a reasonable doubt that the defendant touched the

buttocks of Danielle . . . , that is one contact. If the State proved beyond a reasonable

doubt that the defendant touched the vagina of Danielle on the first occasion . . . ,
No. 10-3499 Page 4

that is a second contact. If the State proved beyond a reasonable doubt that the

defendant touched the vagina of Danielle on the second occasion . . . , that is a third

contact. If the State proved beyond a reasonable doubt that the defendant

intentionally caused or allowed Danielle to do the touching of . . . the penis of the

defendant . . . , that is a fourth contact.

It is for you to decide if there were no contacts, as I have defined that, or one contact

or two contacts or three contacts or four contacts. If you find three or more contacts,

as I have defined them . . . , that makes up the offense of repeated acts of sexual

assault of a child.

Minutes later, the jury returned its verdict, finding Schweiner guilty of the charged crime of

repeated sexual assault of the same child. The judge sentenced him to 20 years in prison

and 20 years of extended supervision. The court of appeals affirmed, and the state

supreme court denied review.

Schweiner then sought state postconviction relief, asserting that the trial court’s

supplemental instruction permitted the jury to convict him without finding every element

of the offense. He pointed out that under Wisconsin law, simultaneous or nearsimultaneous acts of sexual contact with separate intimate body parts are not considered

separate sexual assaults. He argued that the supplemental instruction required the jury to

consider the near-simultaneous sexual contacts during the first episode at the lake as

separate sexual assaults. Because jurors did not have to indicate which sexual contacts the

prosecution had proven, it was possible that one or more of them found that he had

sexually assaulted Danielle three times but that two of the assaults were the nearsimultaneous sexual contacts during the first episode at the lake. Therefore, Schweiner

argued, the jury might have convicted him of repeated sexual assault even though the

jurors agreed only on two sexual assaults. The trial court denied the postconviction

motion, and Schweiner appealed.

The Wisconsin Court of Appeals acknowledged that simultaneous sexual contacts

could not be considered separate assaults but rejected Schweiner’s assertion that the first

episode at the lake necessarily involved allegations of simultaneous contacts:

[The] evidence indicates that even if both contacts occurred within the context of a

single toss, Schweiner engaged in two separate volitional acts, including a conscious

decision to squeeze and rub Danielle’s buttocks with his hand, and a conscious

decision to move his hand forward to touch her vagina before tossing her.

The court concluded that “[t]he trial court’s supplemental instruction therefore did not

misstate the law when it instructed the jury that it could find four separate contacts.” The
No. 10-3499 Page 5

appellate court affirmed the trial court’s denial of postconviction relief, and the Wisconsin

Supreme Court denied review.

Schweiner then petitioned the federal district court for a writ of habeas corpus. A

magistrate judge presiding by consent, see 28 U.S.C. § 636(c)(1), denied the petition. The

judge began by questioning whether the petition raised a question of federal law and

ultimately assumed without deciding that it did. The judge then concluded that habeas

relief was unwarranted because the trial court’s supplemental instruction “ma[de] clear

that the jury could, but was not required to, view the single-toss/hand-to-buttock touching

and the hand-to-vagina touching as separate sexual assaults.”

We granted a certificate of appealability on the issue of whether the instruction

violated Schweiner’s federal constitutional right to due process.

II. Discussion

A person in custody pursuant to a state-court conviction may petition for a writ of

federal habeas corpus “only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Estelle v.

McGuire, 502 U.S. 62, 67 (1991) (“ ‘[F]ederal habeas corpus relief does not lie for errors of

state law.’ ” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))); Corcoran v. Wilson, 651 F.3d

611, 613 (7th Cir. 2011). As a result, state-law violations “are cognizable only if they

resulted in fundamental unfairness and consequently violate a petitioner's constitutional

rights.” McGuire, 502 U.S. at 72; Lechner v. Frank, 341 F.3d 635, 642 (7th Cir. 2003).

Schweiner conceptualizes his claim as a violation of federal due process. But such a claim

merits federal habeas relief “only if the state court committed an error so serious as to

render it likely that an innocent person was convicted.” Perruquet v. Briley, 390 F.3d 505,

510 (7th Cir. 2004).

Of course, Schweiner is correct that “the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).

Accordingly, jury instructions that relieve the State of its burden of proof violate due

process. Carella v. California, 491 U.S. 263, 265 (1989) (per curiam). Schweiner argues that

the trial court’s supplemental instruction allowed the jury to convict him without finding

three distinct sexual contacts, as required for the crime of repeated sexual assault of the

same child. SeeWIS. STAT. § 948.025(1) (1999-2000).

Under Wisconsin law two near-simultaneous sexual contacts generally cannot
No. 10-3499 Page 6

constitute separate sexual assaults. See State v. Hirsch, 410 N.W.2d 638, 641 (Wis. Ct. App.

1987). In Hirsch the prosecutor charged the defendant with three counts of sexual assault

for touching the victim’s vagina, buttocks, and vagina a second time with “little, if any,

lapse of time between the alleged acts.” Id. The Wisconsin Court of Appeals held that

convicting the defendant of three separate counts of sexual assault based on the nearsimultaneous contacts violated double jeopardy. Id. The court drew on State v. Eisch,

291 N.W.2d 800, 805 (Wis. 1980), in which the Wisconsin Supreme Court held that it is

fundamentally unfair for a defendant “to be charged, tried, or convicted for offenses that

are substantially alike when they are a part of the same general transaction or episode.” See

Hirsch, 410 N.W.2d at 641.

This case is different. Here, the state appellate court held that “[t]he trial court’s

supplemental instruction . . . did not misstate the law when it instructed the jury that it

could find four separate contacts.” The court noted Danielle’s testimony that Schweiner

committed two distinct sexual acts in the process of tossing her out of the water, “including

a conscious decision to squeeze and rub Danielle’s buttocks with his hand, and a conscious

decision to move his hand forward to touch her vagina.” The court rejected Schweiner’s

comparison to Hirsch because Schweiner “had time to reflect on his conduct and commit

himself to having sexual contact with a second intimate body part of Danielle’s.”

Schweiner zeros in on the appellate court’s explanation that Danielle’s testimony

and the trial court’s supplemental instruction permitted the jury to find that the contacts

with separate body parts were independent and therefore distinct sexual assaults. Because

the instruction did not tell the jurors that simultaneous or near-simultaneous contacts could

not be separate sexual assaults, Schweiner argues that the trial court effectively removed an

issue of fact from the jury. We disagree. The appellate court held that the evidence and the

instruction permitted the jury to find that the touching of separate body parts during the

first outing at the lake constituted separate assaults, not that such a finding was required.

That is, the court held that the instruction was an accurate statement of the law in the

context of the facts of the case and did not allow the jury to convict Schweiner of repeated

sexual assault based on simultaneous sexual contacts.

The flaw in Schweiner’s argument is its premise that Danielle’s testimony about his

conduct during the first visit to the lake necessarily described a single act of sexual assault.

The trial judge emphasized in the supplemental instruction that it was the jury’s role to

decide “if there were no contacts, as I have defined that, or one contact or two contacts or

three contacts or four contacts.” The instruction, the state appellate court held, was a

correct statement of Wisconsin law in the context of the facts of the case. We are bound by

this interpretation of state law. See McCloud v. Lechner, 409 F.3d 869, 874-75 (7th Cir. 2005);

Lechner, 341 F.3d at 642 (citing Wainwright v. Goode, 464 U.S. 78, 84 (1983)).
No. 10-3499 Page 7

Schweiner’s argument resembles one we rejected in Curtis v. Montgomery, 552 F.3d

578 (7th Cir. 2009), a habeas case challenging a conviction for the Illinois crime of

aggravated stalking, which requires the prosecutor to prove that the defendant placed the

victim under surveillance on at least two occasions. Id. at 581. The defendant argued that

the prosecution failed to prove a second act of “surveillance” as that term is defined in the

Illinois stalking statute. Relying on Jackson v. Virginia, 443 U.S. 307 (1979), the defendant

insisted that an element of the crime was not proven and thus his right to due process had

been violated. Curtis, 552 F.3d at 581. We held that the defendant was really disagreeing

with the state court’s interpretation of state law—namely, that his conduct fit the Illinois

stalking statute’s definition of “surveillance.” See id. Accordingly, we rejected his claim as

“impermissibly attempting to use a petition for a writ of habeas corpus to press his

preferred interpretation of [state] law.” Id. at 582. The same is true here.

AFFIRMED.

CONLEY, District Judge, concurring. Deferring to the opinion of the Wisconsin

Court of Appeals, the majority’s opinion states that the “instruction permitted the jury to

find that the touching of separate body parts during the first outing at the lake constituted

separate assaults, not that such a finding was required.” (Maj. Op. 6 (emphasis in original).)

While concurring in the court’s decision to affirm the denial of defendant’s petition on

other grounds, I write separately because the trial court’s supplemental instruction to the

jury unconstitutionally foreclosed a finding of simultaneous contact and the majority

opinion may be erroneously cited by future litigants for the proposition that a state court

may construe away post hac defects fundamental in the government’s proof of essential

elements of the crime charged simply by casting it as a matter of state law.

As quoted more fully by the majority, the trial court instructed in relevant part:

If the State proved beyond a reasonable doubt that the defendant touched the

buttocks of Danielle and that she was under 16 and that it was done with intent to

become sexually aroused or gratified, that is one contact. If the State proved beyond a

reasonable doubt that the defendant touched the vagina of Danielle on the first

occasion [and] that she was under 16 and that it was done to become sexually

aroused or gratified, that is a second contact.

(Emphasis added.) Particularly because this supplemental instruction was given in direct

response to a specific question posed by the jury during its deliberation as to whether “the

touching of the buttocks or vagina constitute one or two separate charges towards three

sexual assaults,” this instruction could reasonably be understood by the jury to direct it to

consider a single toss or throw in the quarry as two contacts—one to the buttocks and one

to the vagina. With that framework in mind, the jury was further instructed to decide “if
No. 10-3499 Page 8

there were no contacts, as I have defined that, or one contact or two contacts or three contacts

or four contacts.” (Emphasis added.)

To my reading, while the jury certainly remained free to determine whether the

alleged contacts occurred, the trial court effectively decided whether one toss or throw

constituted one contact or two contacts as a result of this supplemental instruction.

The Wisconsin Court of Appeals concluded that the evidence supported a finding

that the “acts were different in nature and involved a separate volitional choice by

[Schweiner],” which permitted “the jury . . . [to] find that Schweiner’s decision to touch

Danielle’s buttocks, followed by his decision to touch her vagina, even within the context of

a single toss at the quarry, constituted two separate sexual assaults.” (R2:Attach.E:9.) But

the fact that the jury could have found the touches constituted two separate contacts for the

purpose of convicting Schweiner of repeated sexual assault of a child, simply does not

address the flaw in the court’s conclusion: the supplemental instruction took that finding

away from the jury.

The issue posed in Schweiner’s petition is not merely a matter of semantics.

Schweiner was convicted of engaging in three or more sexual assaults. While Wisconsin

courts may interpret what constitutes a separate sexual assault, that is not what occurred

here. On the contrary, the Wisconsin Supreme Court and the Wisconsin Court of Appeals

have already defined what constitutes separate contacts for purposes of § 948.025(1). See

State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800, 803 (1980) (holding that to constitute a

separate contact under § 948.025(1), the contact must be “either separated in time or . . . of a

significantly different nature in fact”); State v. Hirsch, 140 Wis. 2d 468, 474, 410 N.W.2d 638,

641 (Ct. App. 1987) (citing Eisch, holding that “the acts allegedly committed are not ‘so

significantly different in fact that they may be properly denominated separate crimes’”).

By directing the defendant’s touch of the buttocks and vagina constituted two separate

contacts “even within the context of a single toss,” the trial judge prevented the jury from

making the very finding it was required to make: that the touch constituted two separate

contacts as defined in Eisch and Hirsch.

“[T]he Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with which

he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The right to trial by jury “includes,

of course, as its most important element, the right to have the jury, rather than the judge,

reach the requisite finding of ‘guilty.’ ” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).

For this reason, the trial court’s supplemental instruction violated Schweiner’s rights

under the Fifth and Sixth Amendments, and as such the Wisconsin Court of Appeals’

decision affirming his conviction was “contrary to, or involved an unreasonable application
No. 10-3499 Page 9

of, clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1).

The certificate of appealability in this case was limited to “whether the trial court’s

supplemental instructions permitted conviction without a jury finding beyond a reasonable

doubt all facts necessary for conviction in violation of Schweiner’s rights to due process.”

Since Schweiner did not object to the supplemental instruction, however, his only avenue

of relief on appeal is through an ineffective assistance of counsel claim. Here, too, I would

find for Schweiner. His defense counsel may have made a reasonable decision not to seek a

favorable instruction in the first instance on what constitutes a contact, because it might

undermine his sole “defense . . . that none of them had happened.” (App.121 (emphasis

added).) But once the jury specifically asked for guidance, there was no longer a tactical or

strategic reason for failing to urge the court to instruct the jury that they decide whether

touching involved in a single toss constituted one or two contacts.

Still, I conclude that the error was harmless. Danielle testified at trial that Schweiner

threw her repeatedly during the trip to the quarry, and that the touching of her buttocks

and vagina happened during most of those tosses. Even if the jury had been properly

instructed to determine whether a single toss or throw constituted one or two contacts and

had concluded that a toss constituted just one contact, there was ample evidence of

separate, volitional touches, including Danielle’s testimony that she was repeatedly tossed

or thrown by Schweiner, to allow for a finding of three contacts sufficient to satisfy the

elements of this claim. Indeed, it is inconceivable that the jury could have found the victim

had told the truth about multiple touches on her first toss, but lied about the many

additional tosses she described. On that alternate basis alone, I would affirm the district

court’s denial of Schweiner’s petition. See O'Neal v. McAninch, 513 U.S. 432, 437 (1995) (“[If]

the error did not influence the jury, or had but very slight effect, the verdict and the

judgment should stand.” (internal citation and quotation marks omitted)).