### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No

. 17

- 3639
M ARK D. J ENSEN , Petitioner

- Appellant ,

v.

W ILLIAM P OLLARD , Respondent

- Appellee

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin

. No. 11

- C

- 803

— William C. Griesbach , Chief Judge

.

____________________
A RGUED N OVEMBER 7 , 2018

— D ECIDED M AY 15, 2019

____________________

Before R OVNER , S YKES , and B ARRETT , Circuit Judges

. S YKES , Circuit Judge

. In a prior appeal, we affirmed an order grant ing 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 . W e agreed2 No. 17

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with the district court that th e state court unreasonabl y appli ed 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 initiate d retrial proceedings

. B ut b efore the retrial , the state trial judge concluded that the out

of

- court statements were not testimonial, curing the constitutional defect in Jensen’s first trial. Reasoning that a second trial was unnecessary, t he trial judge reinstated Jensen’s original conviction. Jensen appeal ed the new judgment , but the Wisconsin C ourt of A ppeals has not yet ruled

. In the meantime, Jensen returned to federal court and moved to enforce the conditional writ, which h e argued guaranteed a retrial without the challenged statements. Thedistrict court denied the motion and we affirm. Our jurisdiction is limited to assessing the State’s com pliance 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 disclaim ing any intention of suicide and stat ing 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

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Based on Crawford v. Washington , 541 U.S. 36 (2004), the Kenosha County Circuit C ourt concluded that the letter and
statements were testimonial hearsay, inadmissible under the Confrontation Clause. See U.S. C ONST

. a mend. VI. On interlocutory appeal the Wisconsin Supreme Court agreed that the letter and sta tements 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 S tate 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 U nited S tates 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). T he court also found tha t 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

. H e filed a habeas petition under 28 U.S.C. § 2254 , reassert ing his Confrontation Clause and judicial

- bias claims

. After observing that t he State did not dispute that Julie’s letter and statements were testimonial , t he district judge held that the admission of the4 No. 17

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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 fr om custody unless, within 90 days of the date of this decision, the State initiates proceedings to ret r y 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 vacat ed Jensen’s conviction, and the prosecution noticed its intent to retry him. Jensen predictably moved to exclude Julie’s statements. T he prosecution objected , arguing that two Supreme Court decisions postdat ing Jensen II narrowed the definition of “testimonial , ” abrogat ing 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 t he State asked the federal habeas court for clarificatio n

. Its position was that the trial court’s latest ruling cured any constitutional error , s o it intended to move for reinstatement of the original judgment if the conditionalNo. 17

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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 prosec ution then asked the state trial court to reinstate Je nsen’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 challeng ing the reinstate ment of the conviction

. He argued that the S tate didn’t comply with the writ because it didn’t actual ly retry him . Alternatively, he asked the district judge to adjudicate his judicial

bias claim, which was n’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 substanc e, 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 reinstate ment of Jensen’s convi ction , t he 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 State6 No. 17

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complies with the writ, the district court lose s jurisdiction. Id. Accordingly, t he 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 postdate d Jensen II , t he trial judge held that the evidence

wa s admi ssible and granted the State ’s ensuing motion to reinstate the conviction. That new judgment is now under review by the Wisconsin Court of A ppeals. 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 Stat e could not have complied with such a writ within 90 days given the complexity of the case. He also explained that t he language of the writ left room to resolve the case without a new trial. That is , t he 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 di scretion. It neatly tracks the conditional writ’s unambiguous language. Conversely , Jensen’s proposed interpretatio n asks us to ignore the writ’s instruction to “initiate proceedings” in

1 W e thus lack jurisdiction to consider Jensen’s judicial

- bias claim.No. 17

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favor of a more robust command for a “trial free of [Julie’s] letter.” Th e Supreme Court has cautioned that courts “should not infer

... conditions from silence” whe n interpreting condit ional 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 . T he judgment here gave the S tate two options: release Jensen or ini tiate 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 i s correct, we are skeptical that § 2254 required him to scrutinize the prosecutor ’s good faith

. As with all concl usions of law, w e consider th is issue de novo. See Warren v. Baenen , 712 F.3d 1090, 1096 (7th Cir. 2013). L ooking beyond the express terms of a writ to assess the S tate’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 pend ing 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 a nd 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 person8 No. 17

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detaining another: it is not directed at the state government in toto .”). In short, jurisdiction to assess s tate 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 S tate to either release Jensen or “ initiate proceedings to retry him .” The S tate did the latter , and at that moment t he d istrict 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 post

writ 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 perc eived 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

. A FFIRMED

.No. 17-3639 9

R O V N E R , Circuit Judge, concurring in part and concurring i n the judgment. I agree with my colleagues that we may review only for a buse of discretion the district court’s determination that t h e State complied with the writ. And I am p ersuaded that,

once we have c onc lu ded that there is no abuse of discretion, there is nothing left for the federal cou r ts to do until the petitioner h as exhausted state court remedies and brings a new federal habeas proceeding. I do n o t agree, however, that it was inappropriate for the district court to examine whether the State complied i n g ood faith with the writ or i nstead engaged in sham proceedings in order to circumvent the writ.
The maj or ity cites Jenkins v. Bowling , 6 9 1 F.2d 1225, 1234 (7th Cir. 1982), f or the proposition that, “We h ave long h eld that courts should presume t ha t s tates will comply with equitable remedies in good faith.” But Jenkins a lso makes clear that t he 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
t r y to minimize their abrasive potent i a l

. I t sh o ul d presume t hat the state will attempt to comply i n good faith with the letter a nd spirit of its ruling. Events may rebut the presumption in p articular cases[.]

... If the sta te doe s try [to evade the order], the federal courts have all the powers they need, i ncluding t he p ower to issue mandatory injunctions as detailed a nd specific as the situation requires, backed up by a ll the force of10 No. 17-3639

the United States, to make their decisions effective. Jenkins , 691 F.2d at 1234. Although J enkins did not address habeas proceedings, it did involve a federal court “formulating equitable remedies against a state,” and the comity c oncerns are comparable.

In my view, the dis trict court properly assessed whether there was good faith compliance with the writ, or a possib le bad faith effort to circu m vent 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 fede r al
courts h a d f o u n d co n st i t u t i o n a l l y infirm, a procedural scenario that I believe I h ave not encountered in my nearly thirty-five years on t he federal bench. The district cour t’ s a na lysis of whether t he State had engaged i n sham proceedings t o

c ir c u m vent the writ was part a nd parcel of i ts review of whether t h e S tate had complied with the writ. T he r ef ore, I respectfully concur in part, and concur in the judgment.