### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 1535

D ANIEL H ANSON

,

Petitioner

‐ Appellant

,

v.

D AVID B ETH

, K ENOSHA C OUNTY S HERIFF

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 12

‐ CV

‐ 408

— J. P. Stadtmueller

, Judge

.

____________________

A RGUED N OVEMBER 15, 2013

— D ECIDED D ECEMBER 17, 2013

____________________

Before F LAUM and H AMILTON

, Circuit Judges

, and

K APALA

, District Judge

. *

F LAUM

, Circuit Judge. Daniel Hanson appeals from the

district court’s denial of his petition for a writ of habeas cor

‐

pus, which challenges his state conviction for fleeing and

eluding a Wisconsin traffic officer. At his trial, Hanson

* Of the Northern District of Illinois, sitting by designation.2 No. 13

‐ 1535

sought to introduce testimony that the police officer from

whom he fled had a “confrontational, aggressive and hot

‐ tempered” character, but the trial court excluded the evi

‐

dence under Wisconsin’s analogue to Federal Rule of Evi

‐

dence 404(a). Hanson was convicted and sentenced to sixty

days in jail. He petitioned for a writ of habeas corpus, claim

‐ ing that the trial court’s evidentiary ruling abridged his con

‐

stitutional right to present an effective defense. Because we

do not find the last state

‐ court decision addressing this claim

to be contrary to, or an unreasonable application of, Su

‐

preme Court precedent, we affirm.

I. Background

On June 29, 2006, Kenosha County Sheriff’s Deputy Eric

Klinkhammer initiated a traffic stop after he clocked Daniel

Hanson’s Ford Mustang travelling 15 mph over the speed

limit. It is fair to say that the stop did not pan out as either

party might have wished.

Upon coming to a halt, Hanson got out of his vehicle

waving his driver’s license. Klinkhammer told Hanson to get

back into his car. He testified that Hanson was yelling that

the officer “was taking his rights away and that he didn’t

want to be there” and was acting bizarrely. Hanson, howev

‐

er, stated that Klinkhammer was the one screaming—“really

loudly and very frighteningly”—and said that he found the

situation disorienting and confusing. Klinkhammer extend

‐

ed his police baton and again ordered Hanson to get back

into his vehicle. Hanson finally returned to the driver’s seat.

Klinkhammer then approached the car on the passenger

side, informed Hanson that he had been speeding, and took

Hanson’s license.No. 13

‐ 1535 3

As Klinkhammer walked back towards his police cruiser,

Hanson exited the car a second time. Once again the situa

‐

tion became very tense. Klinkhammer re

‐ brandished his ba

‐

ton and ordered Hanson to return to the car; eventually he

told Hanson that he was under arrest. Suddenly, Hanson

turned and made a break for his vehicle. Klinkhammer

grabbed at Hanson’s shirt and struck him with the baton.

However, Hanson tore himself loose, got back into the car,

and locked the doors.

Once inside the car, Hanson drove off and called 911 to

get directions to the nearest police station. He told the dis

‐ patcher that Klinkhammer was endangering his life, and that

he wanted to find “cooler heads” to defuse the situation. The

dispatcher told him not to move because backup was on the

way, but Hanson refused and insisted that he did not feel

safe. Eventually, the dispatcher relented and gave Hanson

directions to the Pleasant Prairie police station.

Klinkhammer followed in his cruiser. A witness testified that

Hanson was driving safely down the highway, but

Klinkhammer said that at one point Hanson cut off a vehicle

while changing lanes.

At the off

‐ ramp, another police car tried to block Han

‐

son’s progress, but Hanson navigated around it. The chase—

such as it was—ended when Hanson stopped at a red light

and police surrounded his car with guns drawn. Hanson,

who later recounted that he had been absolutely terrified,

turned off his engine and put his hands up. Klinkhammer

demanded that Hanson open the door and exit the vehicle.

Hanson did not comply, so the officers smashed the car win

‐

dow, pulled him out, and arrested him.4 No. 13

‐ 1535

Hanson was eventually charged under Wisconsin’s felo

‐

ny fleeing

‐ and

‐ eluding statute, Wis. Stat. § 346.04(3). His tri

‐

al strategy was to argue that he fled in self

‐ defense because

he legitimately and reasonably feared for his safety. In sup

‐

port of this theory, he moved in limine to introduce testimo

‐

ny from a high

‐ school principal under whom Klinkhammer

had worked as the school’s liaison officer. The principal was

prepared to testify that Klinkhammer had a “reputation as

being confrontational, aggressive and hot

‐ tempered.”

Importantly, Hanson did not claim that he knew of

Klinkhammer’s reputation prior to their encounter. Rather,

he sought to advance a pure propensity theory: the princi

‐ pal’s evidence showed that Klinkhammer was an aggressive

person in general, and that made it more likely that

Klinkhammer acted aggressively during the June 29 traffic

stop. Like federal courts, Wisconsin largely excludes pro

‐ pensity evidence. Wis. Stat. § 904.04(1); Fed. R. Evid.

404(a)(1). But, also like federal courts, Wisconsin makes an

exception if the character evidence is offered by the accused

in a criminal case in order to prove “a pertinent trait of char

‐

acter of the victim of the crime.” Wis. Stat. § 904.04(1)(b); ac

‐

cord Fed. R. Evid. 404(a)(2)(B).

Hanson accordingly argued that, within the meaning of

the Wisconsin rule, Klinkhammer was a “victim” of Han

‐

son’s conduct. Cf. State v. Haase

, 293 Wis.2d 322, 330 (Ct. App.

2006) (holding that where the defendant eluded a police of

‐

ficer and caused damage to a squad car, the officer was a

“victim” for purposes of restitution). The trial court rejected

Hanson’s theory. It concluded that fleeing

‐ and

‐ eluding was a

“victimless crime” to which the exception in § 904.04(1)(b)

did not apply. See 7 Daniel D. Blinka, Wisconsin Practice Se

‐No. 13

‐ 1535 5

ries: Wisconsin Evidence § 404.5, at 165–66 (3d ed. 2008) (not

‐ ing that “so

‐ called ‘victimless crimes’ (e.g., drug dealing) fall

within the general ban against using third

‐ parties’ character

as circumstantial evidence of conduct”).

Although deprived by this ruling of his corroborating

propensity evidence, Hanson was still able to explain to the

jury that he acted in self

‐ defense. Even so, the jury convicted

him. He appealed to the Wisconsin Court of Appeals and

again to the Wisconsin Supreme Court. State v. Hanson

, 330

Wis.2d 140 (Ct. App. 2010); State v. Hanson

, 338 Wis.2d 243

(2012). Both courts approved of the trial court’s interpreta

‐

tion of Wisconsin’s rules of evidence and affirmed Hanson’s

conviction. Hanson began serving his prison sentence on

March 24, 2012, during which time he filed his petition for a

writ of habeas corpus. 1

II. Discussion

So far, all we have described is a dispute about the mean

‐ ing of the term “victim” in Wis. Stat. § 904.04(1)(b). We may

not quarrel with the Wisconsin Supreme Court’s interpreta

‐

tion of its own rules of evidence, for “it is not the province of

a federal habeas court to reexamine state

‐ court determina

‐

tions on state

‐ law questions.” Estelle v. McGuire

, 502 U.S. 62,

67–68 (1991). But the question Hanson asks us to decide here

is different (a point that may have been somewhat lost dur

‐ ing the state’s oral argument). Hanson contends that, taking

1 Although Hanson has since been released from prison, his habeas peti

‐

tion is not moot because Wisconsin has not rebutted—indeed, has con

‐

ceded—the presumption that his felony conviction carries collateral con

‐

sequences. See Eichwedel v. Curry

, 700 F.3d 275, 279 (7th Cir. 2012); Diaz v.

Duckworth

, 143 F.3d 345, 346 (7th Cir. 1998).6 No. 13

‐ 1535

as given that Wisconsin’s rules precluded him from intro

‐ ducing evidence in support of his self

‐ defense theory, the

application of those rules at his trial violated his federal

rights—specifically, his constitutional right to present an ef

‐

fective defense. See, e.g.

, Harris v. Thompson

, 698 F.3d 609, 626

(7th Cir. 2012) (noting that various constitutional provisions

together “embod[y] a substantive right to present a mean

‐ ingful and complete defense”).

Our review of this federal question begins with the deci

‐

sion of the last state court to adjudicate the merits of the peti

‐

tioner’s claim—here, the Wisconsin Supreme Court. Kamlager

v. Pollard

, 715 F.3d 1010, 1015 (7th Cir. 2013). The bulk of

Hanson’s argument before the state supreme court con

‐

cerned issues of state law. But he also raised the constitu

‐

tional claim we have just described, albeit “only in a cursory

fashion.” Hanson

, 338 Wis.2d at 265. The court dismissed it

as follows:

The right to present a defense is grounded in princi

‐ ples of due process and confrontation, and ensures

that criminal defendants are not deprived of legiti

‐

mate opportunities to challenge the State’s theory,

and generally to present evidence that could create

reasonable doubt in the minds of members of the jury.

See Chambers v. Mississippi

, 410 U.S. 284, 294–95 (1973).

That right is limited, though, as this court and the

United States Supreme Court have recognized. See,

e.g.

, Taylor v. Illinois

, 484 U.S. 400, 410 (1988) (ac

‐ knowledging limitations on constitutional right to

present a defense, including exclusion of evidence

“inadmissible under standard rules of evidence”);

State v. Pulizano

, 155 Wis. 2d 633, 646–47 (1990)No. 13

‐ 1535 7

(same). As these and many other cases make clear, the

rules of evidence generally have been held to comply

with the constitutional right to present a defense.

Hanson’s challenge does nothing to draw those prec

‐

edents into question. See Crawford v. Washington

, 541

U.S. 36, 68 (2004); Davis v. Washington

, 547 U.S. 813,

822 (2006) (discussing exceptions to the hearsay rule

and the right of confrontation).

Id. at 265–66 (parallel citations omitted).

Because this habeas corpus case involves a state

‐ court

judgment, Hanson must show that the quoted paragraph

was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Su

‐

preme Court of the United States.” 28 U.S.C. § 2254(d)(1).

For a decision to be “contrary” to clearly established law, it

must either apply a rule that contradicts the governing law

set forth in a Supreme Court case or come to a different out

‐

come than the Supreme Court has reached on materially in

‐ distinguishable facts. See Brown v. Payton

, 544 U.S. 133, 141

(2005). For a decision to involve an “unreasonable applica

‐

tion” of clearly established law, the state court must apply

the Supreme Court’s precedents to the facts “in an objective

‐ ly unreasonable manner.” Id.

The Supreme Court has not spoken directly to the consti

‐ tutionality of rules like Federal Rule of Evidence 404(a)(2)—a

problem for Hanson. Cf. Pack v. Page

, 147 F.3d 586, 589 (7th

Cir. 1998) (“[T]he Supreme Court has yet to hold that any

application of a rape

‐ shield statute is inconsistent with the

Constitution, making it particularly hard to say that failure

to make a constitutional exception

... is ‘contrary to

... clear

‐ ly established Federal law.’”). Instead, it has described the8 No. 13

‐ 1535

parameters of the right to present an effective defense in

more general terms. The Court’s cases stand for two basic

propositions. First, rules of evidence must yield to a defend

‐

ant’s constitutional right to present a defense when the rules

“infringe upon a weighty interest of the accused and are ar

‐ bitrary or disproportionate to the purposes they are de

‐ signed to serve.” Holmes v. South Carolina

, 547 U.S. 319, 324

(2006) (internal quotation marks and alterations omitted); see

also Rock v. Arkansas

, 483 U.S. 44, 55 (1987) (“[A] state rule of

evidence

... may not be applied mechanistically to defeat the

ends of justice.”). Second, despite this limitation, “[s]tate and

federal rulemakers have broad latitude under the Constitu

‐

tion to establish rules excluding evidence from criminal tri

‐

als.” Holmes

, 547 U.S. at 324 (quoting United States v. Scheffer

,

523 U.S. 303, 308 (1998)).

Hanson argues that the Wisconsin Supreme Court’s deci

‐

sion was contrary to this body of law because the court never

asked whether applying § 904.04(1)(b) to exclude character

evidence about Klinkhammer was arbitrary or dispropor

‐

tionate to the rule’s purpose. Indeed, the court did not iden

‐ tify a purpose at all. It simply reasoned that (1) there is a

right to present a defense, although it is limited; (2) most

rules of evidence comply with this right; and (3)

§ 904.04(1)(b) is one of those rules.

All this is true, but it does not follow that the state court

applied the wrong rule. At most, Hanson’s argument shows

that the court voiced no rule at all—that it moved from a ma

‐ jor premise (most rules of evidence are constitutional) to a

conclusion (this rule of evidence is constitutional) without

stating the minor premise that linked the two. Yet the Su

‐

preme Court has said that a state court does not need to cite,No. 13

‐ 1535 9

or even be aware of, its precedents “so long as neither the

reasoning nor the result of the state

‐ court decision contra

‐

dicts them.” Early v. Packer

, 537 U.S. 3, 8 (2002); see also Stock

v. Rednour

, 621 F.3d 644, 648 (7th Cir. 2010) (“Our review is of

the state court’s decision, not the cases that it cited (or failed

to cite) along the way.”). The “contrary to” prong of

§ 2254(d) requires Hanson to show more than the state’s fail

‐

ure to cite Holmes

, Rock

, or some other like case to justify its

conclusion. It requires him to show that the state court’s de

‐

cision “contradicts” clearly established law, Brown

, 544 U.S.

at 141, and nothing the state court said about Hanson’s fed

‐

eral claim is out of step with the Supreme Court’s cases. To

the contrary, the court accurately stated their holdings.

The second way Hanson can satisfy § 2254(d) is if the

Wisconsin Supreme Court unreasonably applied clearly es

‐

tablished law—if its “ruling on the claim being presented in

federal court was so lacking in justification that there was an

error

... beyond any possibility for fairminded disagree

‐

ment.” Harrington v. Richter

, 131 S. Ct. 770, 786–87 (2011).

Federal courts must adopt this deferential approach even

when state

‐ court decisions give no reasons for an outcome at

all. See id. at 786 (facing a state court’s one

‐ sentence sum

‐

mary disposition, “a habeas court must determine what ar

‐

guments

... could have supported[] the state court’s deci

‐

sion.”). It follows that federal courts must do the same

where, as here, the state court gave some reasons for an out

‐

come without necessarily displaying all of its reasoning.

Malinowski v. Smith

, 509 F.3d 328 (7th Cir. 2007), is in

‐

structive. In that case, a state trial

‐ court excluded, as privi

‐ leged, testimony by the victim’s school counselor concerning

the young victim’s difficulty perceiving and relating the10 No. 13

‐ 1535

truth. The defendant claimed that this violated his right to

present a defense. The operative state

‐ court decision did not

reference the Holmes / Rock test, or even any federal law at all.

Nevertheless, examining the relevant Supreme Court cases

and the Wisconsin law at issue, we concluded that a fair

‐

minded jurist could determine that the evidence was consti

‐ tutionally excluded, and so we denied the writ. Id. at 335–39.

The Wisconsin Supreme Court’s decision in this case was

likewise well within the realm of reasonableness. To begin

with, the balancing approach required by Holmes and Rock

involves very general interests. For that reason, we recently

cautioned against reading Rock too broadly in the habeas

context. See Arredondo v. Huibregtse

, 542 F.3d 1155, 1170 (7th

Cir. 2008). We also noted that “a state court’s application of

the Rock methodology entails a substantial element of judg

‐

ment,” so that the state court “is entitled to more leeway” on

habeas corpus review. Id. (internal quotation marks omit

‐ ted). Our review of the Wisconsin’s court’s decision is thus

even more deferential than usual.

Wis. Stat. § 904.04(1)(b) also tracks FRE 404(a)(2)(B) and

thus falls squarely within those “standard rules of evidence”

that the Supreme Court has said almost always pass consti

‐

tutional muster. Taylor v. Illinois

, 484 U.S. 400, 410 (1988). Just

this year, the Court observed that “[o]nly rarely have we

held that the right to present a complete defense was violat

‐

ed by the exclusion of defense evidence under a state rule of

evidence.” Nevada v. Jackson

, 133 S. Ct. 1990, 1992 (2013) (per

curiam). The Court also noted that the “constitutional pro

‐ priety” of a state rule that was “akin to [a] widely accepted

rule of evidence

... cannot be seriously disputed.” Id. at 1993;

see also Montana v. Egelhoff

, 518 U.S. 37, 42 (1996) (“[A]nyNo. 13

‐ 1535 11

number of familiar and unquestionably constitutional evi

‐ dentiary rules authorize the exclusion of relevant evi

‐ dence.”); Harding v. Sternes

, 380 F.3d 1034, 1048 (7th Cir.

2004) (“Rule 404(b) is not unconstitutional and therefore Illi

‐

nois’ equivalent is not unconstitutional.”).

We think it very unlikely that § 904.04(1) would disturb

this trend. As the Wisconsin Supreme Court observed in re

‐ gards to the state evidentiary issue, excluding the character

evidence about Klinkhammer served important, nonarbi

‐

trary goals. The evidence “would have added little to the ju

‐

ry ʹ s understanding of [Hanson’s] actions during the traffic

stop, and

... likely would have confused the relevant issues.”

Hanson

, 338 Wis.2d at 265. These are classic reasons to ex

‐

clude character evidence. See, e.g.

, Michelson v. United States

,

335 U.S. 469, 476 (1948) (the exclusion of character evidence

“tends to prevent confusion of issues

... and undue preju

‐ dice”); Advisory Committee’s Note to Fed. R. Evid. 404(a)

(1972) (“Character evidence is of slight probative value and

... tends to distract the trier of fact from the main question of

what actually happened on the particular occasion.”).

Nor does the exclusion of Hanson’s proffered character

evidence seem “disproportionate” to these interests. Holmes

,

547 U.S. at 324. Even though the high

‐ school principal’s tes

‐ timony was excluded, “the exclusion of this character evi

‐

dence did not prevent the real controversy”—Hanson’s self

‐

defense claim—“from being tried.” Hanson

, 330 Wis.2d at

155. As the Wisconsin Court of Appeals noted, Hanson told

the jury directly about his version of the traffic stop. He testi

‐

fied that Klinkhammer “screamed ‘at the top of his lungs,’

took out his baton, acted ‘gruffly’ and ‘angrily’ in taking

Hanson’s license, grabbed him, ripped his shirt, and struck12 No. 13

‐ 1535

him on the back of the head.” Id. In addition, “[t]he jury also

heard testimony from four character witnesses that Hanson

is a truthful and fair person,” id.

, along with testimony from

Klinkhammer, another police officer, an intern riding in

Klinkhammer’s car, and an onlooker, id. at 150. In light of

Hanson’s opportunity to make his case and the risks associ

‐

ated with character evidence in general, there is little reason

to think that excluding the evidence violated Hanson’s con

‐

stitutional rights. Cf. Fontini v. Murphy

, 257 F.3d 39, 47 (1st

Cir. 2001) (rejecting a challenge to the exclusion of evidence

where the defendant “offered direct testimony on the perti

‐

nent issue” of self

‐ defense and the exclusion was “at best in

‐

direct evidence which [did] no more than add to existing

proof that [the victim] was in a mood to lunge”).

One other aspect of Hanson’s position is worth pausing

to consider. A traditional rationale for victim

‐ character rules

like § 904.04(1)(b) is that they give defendants “a counter

‐ weight against the strong investigative and prosecutorial re

‐

sources of the government.” Christopher B. Mueller & Laird

C. Kirkpatrick, Evidence: Practice Under the Rules 264–65 (2d

ed. 1999). The gist of Hanson’s argument is that both the de

‐

fendant charged with fleeing the police and the defendant

charged with assault need such a counterweight. Both seek

to introduce character evidence for the same purpose: to

show that they acted (i.e., fled or attacked) because of anoth

‐

er person’s (i.e., the police officer or the victim’s) aggressive

actions. Yet only the latter defendant is allowed to introduce

the evidence at trial. Indeed, as Hanson notes, Wisconsin’s

interpretation of “victim” implies that he would have been

better off—from an evidentiary perspective—if he had as

‐No. 13

‐ 1535 13

saulted Officer Klinkhammer instead of driving to the police

station. 2

At bottom, then, Hanson’s argument is not really about

whether an individual affected by a particular crime is a

“victim” or not. It is about whether, once a state decides that

some third

‐ party propensity evidence can be introduced to

show a defendant acted in self

‐ defense, the state must give

an airtight rationale for extending that option to defendants

charged with some crimes but not others.

That is a tall order. The narrow exceptions that allow cer

‐

tain types of propensity evidence to be used in criminal trials

have a long pedigree, and are now “so deeply imbedded in

our jurisprudence as to assume almost constitutional pro

‐ portions and to override doubts of the basic relevancy of the

evidence.” Advisory Committee’s Note to Fed. R. Evid.

404(a). But their basis “lies more in history and experience

than in logic.” Id. They are “dispensation[s] from the ordi

‐

nary rules of evidence, and a curious dispensation indeed.”

United States v. Burke

, 781 F.2d 1234, 1239 (7th Cir. 1985)

. The

victim exception in particular was historically confined

largely to cases involving homicide, assault, or rape, even

though, as Hanson contends, its rationale might arguably cut

more broadly. See H. Richard Uviller, Evidence of Character to

Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom

,

130 U. Penn. L. Rev. 845, 856 n.34 (1982).

The Supreme Court long ago acknowledged “the general

opinion of courts, textwriters and the profession that” as

‐

2 But note: battery of a police officer is a Class H felony (punishable by

up to 6 years in prison) while simply fleeing is only Class I (up to 3 years,

6 months). See Wis. Stat. §§ 346.17(3)(a), 939.50(3) & 940.20(2).14 No. 13

‐ 1535

pects of character

‐ evidence law are “archaic, paradoxical

and full of compromises and compensations.” Michelson

, 335

U.S. at 486. “To pull one misshapen stone out of the gro

‐

tesque structure,” as Hanson suggests we do here, may simi

‐ larly be “more likely simply to upset its present balance be

‐

tween adverse interests than to establish a rational edifice.”

Id.

In any event, the standards that govern habeas corpus

review of state

‐ court judgments ensure that we need not de

‐

cide that question in this case. Excluding the character evi

‐

dence about Officer Klinkhammer focused the jury on the

relevant issues while still permitting Hanson to make a vig

‐

orous case that he was acting in self

‐ defense when he fled

the scene of the traffic stop. The Wisconsin Supreme Court’s

decision rejecting Hanson’s constitutional claim was neither

contrary to, nor involved an unreasonable application of,

clearly established federal law, and we must therefore deny

Hanson’s petition.

III. Conclusion

We A FFIRM the judgment of the district court.