In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3639

MARK D. JENSEN,

Petitioner-Appellant,

v.

WILLIAM POLLARD,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 11-C-803 — William C. Griesbach, Chief Judge.

____________________

ARGUED NOVEMBER 7, 2018 — DECIDED MAY 15, 2019

____________________

Before ROVNER, SYKES, and BARRETT, Circuit Judges.

SYKES, Circuit Judge. In a prior appeal, we affirmed an 

order granting Mark Jensen’s application for habeas relief 

from his conviction for the 1998 murder of his wife, Julie. 

Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). The Wisconsin 

Court of Appeals had rejected Jensen’s Confrontation Clause 

challenge to the admission of Julie’s “voice from the grave”

letter expressing her fear that her husband might kill her. 

The rationale for that ruling was harmless error. We agreed 
2 No. 17-3639

with the district court that the state court unreasonably

applied Supreme Court precedent. Id. at 908.

After our mandate issued, the district judge issued a 

conditional writ requiring the State of Wisconsin to either 

release Jensen or “initiate[] proceedings to retry him” within 

90 days. The State timely initiated retrial proceedings. But 

before the retrial, the state trial judge concluded that the outof-court statements were not testimonial, curing the constitutional defect in Jensen’s first trial. Reasoning that a second 

trial was unnecessary, the trial judge reinstated Jensen’s 

original conviction. Jensen appealed the new judgment, but 

the Wisconsin Court of Appeals has not yet ruled.

In the meantime, Jensen returned to federal court and 

moved to enforce the conditional writ, which he argued 

guaranteed a retrial without the challenged statements. The 

district court denied the motion and we affirm. Our jurisdiction is limited to assessing the State’s compliance with the 

conditional writ. The State complied with the writ when it 

initiated proceedings for Jensen’s retrial. 

I. Background

In March 2002 Kenosha County prosecutors charged 

Jensen with first-degree intentional homicide for the death of 

his wife, Julie, on December 3, 1998. Julie’s “voice from the 

grave” was central to the prosecution’s case. Two weeks 

before her death, Julie wrote a letter disclaiming any intention of suicide and stating that she feared her husband was 

going to kill her. She gave the letter to a neighbor in a sealed 

envelope with instructions to give it to the police if anything 

happened to her. Julie also made similar statements to a 

police officer shortly before her death.
No. 17-3639 3

Based on Crawford v. Washington, 541 U.S. 36 (2004), the

Kenosha County Circuit Court concluded that the letter and 

statements were testimonial hearsay, inadmissible under the 

Confrontation Clause. See U.S. CONST. amend. VI. On interlocutory appeal the Wisconsin Supreme Court agreed that 

the letter and statements were testimonial. But the court also

held that the trial judge could admit the evidence under the 

forfeiture exception to the Confrontation Clause if he found

by a preponderance of the evidence that Jensen caused his 

wife’s death. State v. Jensen (“Jensen I”), 727 N.W.2d 518, 536 

(Wis. 2007). After a ten-day hearing, the trial judge admitted 

the evidence. The State introduced the letter and statements 

at trial, and a jury found Jensen guilty. 

While Jensen’s appeal to the Wisconsin Court of Appeals 

was pending, the United States Supreme Court held that the 

forfeiture exception applies only when a defendant acts with 

the particular purpose of preventing the witness’s testimony. 

See Giles v. California, 554 U.S. 353, 367–68 (2008). The

Wisconsin Court of Appeals affirmed Jensen’s conviction 

without deciding whether Giles abrogated Jensen I. It instead 

concluded that any error, if one occurred, was harmless. 

State v. Jensen (“Jensen II”), 794 N.W.2d 482, 493 (Wis. Ct. 

App. 2010). The court also found that Jensen had waived a 

separate due-process claim alleging judicial bias. Id. at 504. 

The Wisconsin Supreme Court denied Jensen’s petition for 

review.

Jensen then turned to federal court. He filed a habeas petition under 28 U.S.C. § 2254, reasserting his Confrontation 

Clause and judicial-bias claims. After observing that the 

State did not dispute that Julie’s letter and statements were

testimonial, the district judge held that the admission of the 
4 No. 17-3639

evidence was an unreasonable application of the forfeiture 

exception and harmless-error doctrine. Jensen v. Schwochert

(“Jensen III”), No. 11-C-0803, 2013 WL 6708767, at *17 (E.D. 

Wis. Dec. 18, 2013). The judge issued a conditional writ with 

the following mandate:

Jensen is therefore ordered released from custody unless, within 90 days of the date of this 

decision, the State initiates proceedings to retry 

him. The Clerk is directed to enter judgment 

accordingly. In the event [the State] elects to 

appeal, the judgment will be stayed pending 

disposition of the appeal.

Id. The State appealed and we affirmed. Jensen, 800 F.3d at 

908. The writ issued on October 19, 2015. 

On December 29 the state trial judge vacated Jensen’s

conviction, and the prosecution noticed its intent to retry 

him. Jensen predictably moved to exclude Julie’s statements. 

The prosecution objected, arguing that two Supreme Court 

decisions postdating Jensen II narrowed the definition of 

“testimonial,” abrogating Jensen I’s holding that Julie’s letter 

and statements were testimonial for purposes of Confrontation Clause analysis. See Ohio v. Clark, 135 S. Ct. 2173 (2015); 

Michigan v. Bryant, 562 U.S. 344 (2011). The trial judge

agreed. Applying Wisconsin’s law-of-the-case doctrine, he

concluded that Jensen I no longer controlled and ruled that 

Julie’s statements were not testimonial.

At this point the State asked the federal habeas court for 

clarification. Its position was that the trial court’s latest 

ruling cured any constitutional error, so it intended to move 

for reinstatement of the original judgment if the conditional 
No. 17-3639 5

writ allowed it. The district judge clarified that the State was 

not required to release Jensen because it initiated retrial 

proceedings within 90 days of the order. The prosecution

then asked the state trial court to reinstate Jensen’s original 

conviction. The judge granted that request, reasoning that no 

purpose would be served by holding a duplicate trial with 

identical evidence. Jensen’s appeal from the new judgment is

pending in the state court of appeals.

While still exhausting his state remedies, Jensen returned 

to federal court with a motion challenging the reinstatement 

of the conviction. He argued that the State didn’t comply 

with the writ because it didn’t actually retry him. Alternatively, he asked the district judge to adjudicate his judicialbias claim, which wasn’t resolved in the original habeas 

proceedings. 

The judge declined to do either. He instead held that the

conditional writ only compelled the State to initiate retrial 

proceedings and that the State had done so. But he didn’t

stop there. The judge determined that § 2254 “require[d]”

him to “inquire into whether the State’s actions constitute[d]

a good faith effort to comply with the substance, as well as 

the form, of the court’s order.” He then examined the state 

court’s post-writ proceedings in detail. After concluding that 

the State had colorable legal grounds to seek reinstatement 

of Jensen’s conviction, the judge denied relief. Jensen appealed.

II. Discussion

When a district court issues a conditional habeas writ, it 

retains jurisdiction to determine compliance. See Hudson v. 

Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017). But once the State 
6 No. 17-3639

complies with the writ, the district court loses jurisdiction. 

Id. Accordingly, the only question properly before this court

is whether the State complied with the writ.1

The relevant facts are undisputed: After initiating proceedings to retry Jensen, the State sought to introduce Julie’s 

letter and statements. Relying on Supreme Court decisions 

that postdated Jensen II, the trial judge held that the evidence 

was admissible and granted the State’s ensuing motion to 

reinstate the conviction. That new judgment is now under 

review by the Wisconsin Court of Appeals. The sole federal 

dispute centers on the meaning of the conditional writ. We 

review a district court’s interpretation of its conditional writ 

for abuse of discretion. Pidgeon v. Smith, 785 F.3d 1165, 1172 

(7th Cir. 2015). 

The writ mandates that Jensen must be “released from 

custody unless ... the State initiates proceedings to retry 

him.” The district judge rejected Jensen’s contention that the 

writ guaranteed him a trial free of Julie’s letter and statements. The judge reasoned that the State could not have 

complied with such a writ within 90 days given the complexity of the case. He also explained that the language of 

the writ left room to resolve the case without a new trial. 

That is, the writ “deliberately required only the initiation of 

proceedings for a retrial within the time allowed in order for 

the State to comply with the writ.”

That interpretation was not an abuse of discretion. It 

neatly tracks the conditional writ’s unambiguous language. 

Conversely, Jensen’s proposed interpretation asks us to 

ignore the writ’s instruction to “initiate proceedings” in 

 1 We thus lack jurisdiction to consider Jensen’s judicial-bias claim.
No. 17-3639 7

favor of a more robust command for a “trial free of [Julie’s]

letter.” The Supreme Court has cautioned that courts 

“should not infer ... conditions from silence” when interpreting conditional writs. Jennings v. Stephens, 135 S. Ct. 793, 

799 (2015). Instead, a petitioner’s “rights under the judgment 

were what the judgment provided.” Id. at 798. The judgment 

here gave the State two options: release Jensen or initiate 

proceedings to retry him. It did not contain an implicit right 

to retrial without Julie’s letter or statements.

But while the judge’s interpretation of his order is correct, 

we are skeptical that § 2254 required him to scrutinize the 

prosecutor’s good faith. As with all conclusions of law, we

consider this issue de novo. See Warren v. Baenen, 712 F.3d 

1090, 1096 (7th Cir. 2013). Looking beyond the express terms 

of a writ to assess the State’s good faith risks creating the 

very unstated conditions that courts cannot read into writs. 

See Jennings, 135 S. Ct. at 799. And asking whether post-writ 

proceedings are “shams” requires examining the legal merits 

of state proceedings prior to exhaustion. See 28 U.S.C. 

§ 2254(b)(1). Indeed, the district court’s inquiry here discussed the very issues that remain pending in Jensen’s direct 

appeal in the Wisconsin Court of Appeals. 

We have long held that courts should presume that states 

will comply with equitable remedies in good faith. Jenkins v. 

Bowling, 691 F.2d 1225, 1234 (7th Cir. 1982). This presumption applies with particular force in § 2254 proceedings, 

where “[f]ederalism and comity principles pervade.” Johnson 

v. Foster, 786 F.3d 501, 504 (7th Cir. 2015). A conditional writ 

under § 2254 is not “a general grant of supervisory authority 

over state trial courts.” Jennings, 135 S. Ct. at 799; see also 

Hudson, 863 F.3d at 656 (“The writ is directed to the person 
8 No. 17-3639

detaining another: it is not directed at the state government 

in toto.”). In short, jurisdiction to assess state compliance 

with conditional writs is constrained by the actual remedy 

ordered by the court—that is, the terms of the writ. 

In this case the conditional writ required the State to 

either release Jensen or “initiate proceedings to retry him.” 

The State did the latter, and at that moment the district court 

lost jurisdiction. Jensen’s custody flows from a new judgment reinstating the original conviction on an alternative 

ground from that challenged in Jensen III. See Coulter v. 

McCann, 484 F.3d 459, 466 (7th Cir. 2007) (holding that postwrit proceedings in state court can confirm that no constitutional violation occurred in the first place). We lack jurisdiction to explore whether that judgment is constitutionally 

infirm. Jensen is free to challenge any perceived constitutional errors via his direct appeal in state court. Indeed, he 

must exhaust those remedies before raising any constitutional claims in a new § 2254 petition. 

AFFIRMED.
No. 17-3639 9

ROVNER,Circuit Judge, concurring in part and concurring in

the judgment. I agree with my colleagues that we may review

only for abuse of discretion the district court’s determination

that the State complied with the writ. And I am persuaded that,

once we have concluded that there is no abuse of discretion,

there is nothing left for the federal courts to do until the

petitioner has exhausted state court remedies and brings a new

federal habeas proceeding. I do not agree, however, that it was

inappropriate for the district court to examine whether the

State complied in good faith with the writ or instead engaged

in sham proceedings in order to circumvent the writ. 

The majority cites Jenkins v. Bowling, 691 F.2d 1225, 1234

(7th Cir. 1982), for the proposition that, “We have long held

that courts should presume that states will comply with

equitable remedies in good faith.” But Jenkins also makes clear

that the presumption is rebuttable and that federal courts have

the power to correct noncompliance: 

When formulating equitable remedies against a

state—an entity still to be regarded as having

some sovereign dignity—a federal court should

tryto minimize their abrasive potential.It should

presume that the state will attempt to comply in

good faith with the letter and spirit of its ruling.

Events may rebut the presumption in particular

cases[.] ... If the state does try [to evade the

order], the federal courts have all the powers

they need, including the power to issue mandatory injunctions as detailed and specific as the

situation requires, backed up by all the force of
10 No. 17-3639

the United States, to make their decisions effective. 

Jenkins, 691 F.2d at 1234. Although Jenkins did not address

habeas proceedings, it did involve a federal court “formulating

equitable remedies against a state,” and the comity concerns

are comparable. 

In my view, the district court properly assessed whether

there was good faith compliance with the writ, or a possible

bad faith effort to circumvent the writ. That was especially

appropriate in a case where the State sought to reinstate (and

in fact did reinstate) the very same judgment that the federal

courts hadfoundconstitutionallyinfirm, aprocedural scenario

that I believe I have not encountered in my nearly thirty-five

years on the federal bench. The district court’s analysis of

whether the State had engaged in sham proceedings to

circumvent the writ was part and parcel of its review of

whether the State had complied with the writ. Therefore, I

respectfully concur in part, and concur in the judgment.