*

 After an examination of the briefs and the record, we have concluded that

oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the

record. See Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2006*

Decided December 22, 2006

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 02-4371

WILLIAM SPEENER,

Petitioner-Appellant,

v.

QUALA CHAMPAGNE, Warden,

Respondent-Appellee.

Appeal from the United States District

Court for the Eastern District of

Wisconsin

No. 00 C 573

Patricia J. Gorence,

Magistrate Judge.

ORDER

William Speener, who is serving a Wisconsin state court sentence, appeals

from the district court’s decision denying his petition for a writ of habeas corpus. 

He argues that his appellate counsel was ineffective for not raising in his postconviction motion his trial counsel’s failure to object to a read-back of testimony. 

We affirm. 

Speener was convicted in 1995 by a Wisconsin state court of two counts of

first-degree sexual assault of a child and one count of exposing his genitals. At trial

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 02-4371 Page 2

the victim’s aunt, Guadalupe Olson, testified that her niece told her about being

molested by Speener. During the deliberations, the jury sent notes to the judge

asking if they could have Olson’s testimony read back to them. The judge granted

the request and had the court reporter read back the testimony. He apparently did

so without consulting either Speener or the attorneys (there is no transcript of the

read-back or the court’s original response to the jury’s request). When the parties

returned to court for the reading of the verdict, the judge (this time in a transcribed

conversation) informed the parties of the jury’s request and his decision to grant it. 

The parties did not object to the court’s action. 

After his conviction Speener, now represented by new counsel, filed a postconviction motion, as Wisconsin law requires him to do to preserve issues for his

direct appeal. In this motion, Speener’s new counsel raised several claims of error,

but he did not argue that trial counsel was ineffective for failing to object to the

read-back. The Wisconsin trial court denied the motion and the Court of Appeals of

Wisconsin affirmed.

Speener then filed a pro se motion in the Wisconsin courts for collateral

relief, arguing for the first time that his appellate counsel was ineffective for failing

to raise the read-back issue. The Wisconsin trial court denied his motion, and the

Court of Appeals of Wisconsin affirmed. Applying the decision of the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the appellate

court found that Speener could not show that trial counsel was ineffective because

he could not show that he was prejudiced by his trial counsel’s failure to object. 

Specifically, it found that the court simply read back testimony that the jury had

already heard, and Speener could not show a reasonable probability that the

outcome of his trial would have been different if his counsel had objected, see id. at

694. 

Speener then filed a petition for a writ of habeas corpus in the district court,

which denied the petition on grounds similar to those cited by the Court of Appeals

of Wisconsin.

Speener first argues that the Court of Appeals of Wisconsin unreasonably

applied Strickland when it decided that he could not show prejudice. See 28 U.S.C.

§ 2254(d)(1); see also Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006). 

Specifically, he argues that the court should have found that he showed prejudice

because, had he been informed of the jury’s request, he would have objected on the

grounds that Olson’s testimony was false. But Speener had already had a chance to

challenge Olson’s credibility during cross-examination, and he does not explain how

the read-back undermined his efforts in this respect.
No. 02-4371 Page 3

Speener next asserts that he was prejudiced because the read-back was not

transcribed, and therefore he does not know what was actually said. There is no

record to reflect what section of Olson’s testimony was read, if it was read correctly,

if the court reporter read anything beyond what he or she was supposed to, or if the

court reporter answered any juror questions about the read-back. In a similar case,

DeGrave v. United States, 820 F.2d 870, 870–71 (7th Cir. 1987), we found such ex

parte communications between the court and the jury can be “presumptively

prejudicial,” and remanded the case so the district court could conduct an

evidentiary hearing on what occurred at the read-back. Id. at 872. 

However, in this case, the absence of a record as to what was said during the

read-back is partially Speener’s fault. Unlike DeGrave, who made a pro se request

during his direct appeal to expand the record to explore the jury-communication

issue, Speener did not raise this issue until his collateral proceedings and even then

he did not seek to develop the facts more fully. Although the state court record

before us reflects that he sought a fact-finding hearing on his petition, he did not

explain that he needed the hearing to determine what happened at the read-back,

nor does he now argue that he was unfairly denied a hearing in state court. 

Speener has the burden of showing he was prejudiced under Strickland, 466 U.S. at

694; United States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005), cert. denied, 126 S.

Ct. 1022 (2006), and this he has not done.

AFFIRMED.