In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3921

EDWARD A. HAMMER,

Petitioner-Appellant,

v.

THOMAS E. KARLEN,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01 C 523—J. P. Stadtmueller, Judge.

____________

ARGUED MAY 22, 2003—DECIDED SEPTEMBER 5, 2003

____________

Before BAUER, KANNE, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. For the reasons carefully enunciated in the order of the learned court below dated July 8,

2002, which we adopt as our own and append hereto, we

AFFIRM the denial of Edward A. Hammer’s petition for writ

of habeas corpus.

ORDER

On May 22, 2001, Edward Hammer filed with this court a

petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254, challenging his March 30, 1998, Wisconsin state court

convictions for fourth degree sexual assault and second

degree sexual assault of a child. He raises two arguments,
2 No. 02-3921

1 It is unclear whether Mr. Hammer’s first argument was ever

presented to the courts of the state of Wisconsin as an issue of

federal constitutional law, however. As such, the court may lack

jurisdiction to consider it. Cf. Bocian v. Godinez, 101 F.3d 465 (7th

Cir. 1996) (noting exhaustion requirement that claims be presented to state courts as federal constitutional claims prior to

federal habeas corpus review and explaining how to determine

whether a petitioner adequately presented his claims in that manner). In his answer the respondent “admits” that Mr. Hammer

properly exhausted his claims, though. As the argument in question may be equally disposed of on the merits as on the ground of

non-exhaustion, the court will not probe further the parties’

contention that all claims in Mr. Hammer’s petition have been

properly preserved for review.

each of which were previously presented to the Wisconsin

Court of Appeals and the Wisconsin Supreme Court.1

 First,

he claims that the trial court’s admission of certain “prior

bad act” evidence deprived him of his Fourteenth Amendment right to due process. Second, he claims that the trial

judge’s refusal (pursuant to the State of Wisconsin’s rape

shield law) to admit evidence of the victims’ alleged prior

sexual conduct deprived him of his Sixth Amendment rights

to confrontation and compulsory process.

The Wisconsin Court of Appeals considered Mr. Hammer’s

arguments on September 1, 1999, but withheld judgment

and certified them to the Wisconsin Supreme Court for

resolution. That court ruled against Mr. Hammer in a 4-3

decision dated July 11, 2000, and denied a subsequent

petition for review.

The court has reviewed Mr. Hammer’s § 2254 petition,

the entire state court record, the briefs submitted by the

parties, and the cases cited therein. For the reasons set

forth below, the petition will be denied.
No. 02-3921 3

BACKGROUND

Mr. Hammer stood trial in Racine County (Wisconsin)

Circuit Court February 10-13, 1998, charged with four

counts of sexual assault. It was alleged that in the predawn darkness of June 29, 1997, Mr. Hammer improperly

touched three young guests in the home of Mr. Hammer’s

parents, where Mr. Hammer resided. The alleged victims

were two stepsons of Mr. Hammer’s brother, Steve, and one

of the stepsons’ friends.

Mr. Hammer’s position at trial was that he was the victim

of mistaken identity. (The alleged assault occurred while

the boys were asleep or semi-asleep. Two of the three

victims testified that they did not know who touched them;

only that they had been touched.) Mr. Hammer argued that

one or more of the boys themselves may have engaged in

the allegedly improper touching—either in horseplay or as

youthful experimentation—if it did, in fact, occur.

During the course of the trial the presiding judge made

two important evidentiary decisions. First, he permitted the

prosecutor to introduce certain “prior acts” evidence. That

evidence took the form of testimony presented by the victim

of an alleged earlier indiscretion by Mr. Hammer. The

witness testified that a then 18 (or possibly 16)-year-old Mr.

Hammer awakened the then twenty-year-old witness in the

middle of the night by fondling the witness’s penis while

Mr. Hammer was a houseguest in the home where the

witness was staying. The judge deemed the evidence admissible to show opportunity, mode or method of operation,

and absence of mistake—even though the event had occurred several years earlier, and did not involve an underage victim.

Second, the judge prohibited defense counsel from crossexamining the victims about sexual horseplay they may

have engaged in the day before the alleged assaults and

barred introduction of affirmative evidence of that horse-
4 No. 02-3921

2 The court notes that the “fabrication” theory Mr. Hammer presents to this court is significantly different from that he presented

to the state courts. As the only issue in a habeas corpus case

is whether an earlier court reached a constitutionally unreasonable decision, see 28 U.S.C. § 2254, evolving legal theories such as

that Mr. Hammer wishes to present seldom, if ever, result in relief, cf. Pack v. Page, 147 F.3d 586, 588 (7th Cir. 1998) (noting that

changed legal theory suggests, if anything, that the challenged

state court decision was actually correct under the previouslypresented theory).

play. This evidence, Mr. Hammer asserted, could have

shown a motive for the boys to fabricate their allegations,2

or—by showing a pattern of conduct proximately related in

time to his charged acts—could have suggested a different

assailant (one of the boys). The circuit court balanced the

policies of the state’s “rape shield” statute against the defendant’s Sixth Amendment rights, and refused to permit

the testimony.

The jury convicted Mr. Hammer on two of the four

charged counts. Mr. Hammer appealed, arguing that the

disputed evidentiary decisions deprived him of a fair trial.

Finding unsettled precedent with respect to the proper admission of prior acts evidence, the Wisconsin Court of Appeals certified the appeal to the Wisconsin Supreme Court

for disposition.

By a four-three majority, the state supreme court found

the contested prior acts evidence properly admitted to show

mode or method of operation (thus tending to establish the

identity of the perpetrator). This decision was reached as a

matter of Wisconsin evidentiary law and no constitutional

principles were cited in support of the decision.

The court, without dissent, also upheld the trial court’s

other disputed decision. The court found that the state’s

rape shield statute was properly invoked to exclude evi-
No. 02-3921 5

dence of the victims’ alleged prior sexual conduct. In doing

so it acknowledged the important constitutional rights to

cross-examination and compulsory process, but noted that

neither is absolute. In the state supreme court’s view, the

rights invoked by Mr. Hammer were little-implicated in his

trial, and outweighed by the state’s interest in protecting

the privacy of sexual assault victims.

DISCUSSION

Under 28 U.S.C. § 2254, a federal court may grant a writ

of habeas corpus only if the relevant state court decision (1)

was contrary to clearly established law, as determined by

the Supreme Court of the United States, or (2) involved an

unreasonable application of clearly established federal law,

also as determined by the Supreme Court of the United

States. These are high standards. For a state court decision

to be “contrary to” federal law, the state court must have

applied an incorrect legal test to the facts, or confronted a

set of facts materially indistinguishable from those in a

Supreme Court case but nonetheless reached a result different from the Court’s precedent. See Williams v. Taylor,

529 U.S. 362, 405-06 (2000). A state court decision that

correctly identifies the governing legal principle but that

applies it unreasonably to the facts of a particular prisoner’s case implicates the second basis for habeas corpus

relief. See id. at 407-08. This, too, is a “demanding standard.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).

For a petitioner to obtain relief on this ground, the state

court must not only have reached an incorrect result, but a

truly “unreasonable” one. See id. Thus, if the state court’s

decision is “at least minimally consistent with the facts and

circumstances of the case,” the federal court is powerless to

grant relief. Id. at 335.

Applying these standards to Mr. Hammer’s claims, it is

apparent he is not entitled to the relief he seeks. He does
6 No. 02-3921

3 The court wishes to note that it, too, is unaware of any precedent the trial court may have applied unreasonably. As the Seventh Circuit Court of Appeals has remarked:

[W]hen the state merely fails to limit the prosecution’s

evidence, the only constitutional principle to which the defendant can appeal is a catch-all sense of due process, and the

appeal almost always fails. If the evidence is probative, it will

be very difficult to find a ground for requiring as a matter of

constitutional law that it be excluded; and if it is not probative, it will be hard to show how the defendant was hurt by its

admission.

Watkins v. Meloy, 95 F.3d 4, 6-7 (7th Cir. 1996) (internal citations

omitted).

4 Actually, Mr. Hammer argues that the state courts reached decisions “contrary to” these cited cases. As none of the cited cases

(continued...)

not even attempt to meet the standards with respect to his

first (prior acts) argument. His brief in support of issuance

of the writ on this point calls the trial court’s decision

merely “questionable” and cites no Supreme Court (or any

other) precedent he believes should have compelled a different result. Referencing an argument in his appellate

brief he asserts that this decision “when combined with” the

other contested decision may have violated his due process

rights, but his earlier brief does not cite any federal precedent supporting even this position. As Mr. Hammer has

identified no Supreme Court precedent the courts of the

State of Wisconsin may have applied unreasonably in permitting the admission of prior bad act evidence against

him,3

 relief must be denied as to the claim.

In support of his second (Sixth Amendment) claim, Mr.

Hammer argues that the Wisconsin Supreme Court unreasonably misapplied the holdings of Davis v. Alaska, 415

U.S. 308 (1974), Olden v. Kentucky, 488 U.S. 227 (1988),

and Chambers v. Mississippi, 410 U.S. 284 (1973),4

 by up-
No. 02-3921 7

(...continued)

involved materially indistinguishable facts, however, the proper

(and likely intended) standard of analysis is that found in the second clause of 28 U.S.C. § 2254(d)(1)—“unreasonable application.”

holding the trial court’s application of the Wisconsin rape

shield law to block inquiry into the victims’ own sexual

activities. The court disagrees.

While the cases cited by Mr. Hammer recognize the

importance cross-examination and presentation of favorable

witnesses may play in securing the rights guaranteed by

the Sixth Amendment, see Davis, 415 U.S. at 315; Olden,

488 U.S. at 231; Chambers, 410 U.S. at 294, none establish

an absolute right to cross-examination or presentation of

favorable witnesses. In fact, they specifically disavow the

existence of such a right. See Davis, 415 U.S. at 316 (noting

that cross-examination is “subject always to the broad discretion of a trial judge to preclude repetitive and unduly

harassing interrogation”); Olden, 488 U.S. at 232 (“a trial

court may, of course, impose reasonable limits on defense

counsel’s inquiry”); Chambers, 410 U.S. at 295 (“the right to

confront and to cross-examine is not absolute and may, in

appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process”).

Indeed, the three cases cited by the petitioner were highly fact specific, see Davis, 415 U.S. at 318 (finding that

“on these facts” the trial infringed the defendant’s Sixth

Amendment rights); Chambers, 410 U.S. at 302-03 (“In

reaching this judgment, we establish no new principles of

constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in

the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply

that under the facts and circumstances of this case the

rulings of the trial court deprived [the defendant] of a fair
8 No. 02-3921

5 The court wishes to note that Mr. Hammer has argued in only

the most conclusory terms that the evidence he wished to present

was crucial to his case, or even relevant. (Petitioner’s brief asserts

that the evidence in his favor was “far less persuasive” as a result

of the exclusion). Such perfunctory argument provides the court

with no basis from which it could conclude that the state court’s

contrary finding was unreasonable.

trial.”), and did no more than establish a rule that a trial

court may not abridge a defendant’s cross-examination or

presentation of favorable witnesses when doing so would

unduly impair his or her ability to present a reasonable

defense.

The state supreme court properly identified this rule, see

State v. Hammer , 236 Wis. 2d 686, 712-13 (Wis. 2000) (citing Chambers, 410 U.S. 284 and Davis, 415 U.S. 308), and

applied it reasonably to determine, inter alia, that the evidence Mr. Hammer wished to present was not highly relevant5

 and that his interest in presenting it was outweighed

by the state’s interest in protecting the privacy of sexual

assault victims, as articulated in the state’s “rape shield”

statute, Wis. Stats. § 972.11. No more was required of the

court. See Pack, 147 F.3d at 589 (all the Constitution requires “is that courts . . . give earnest consideration to the

possibility that excluding evidence under a rape shield law

may interfere unduly with the defendant’s opportunity to

present a defense of innocence”). As the state court’s decision did not involve an unreasonable application of Su-
No. 02-3921 9

6 In fact, no such precedent exists that the state courts could have

applied unreasonably. See Pack, 147 F.3d at 589 (“Indeed, the 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 rape-shield

law—which is what [the petitioner] needs in order to prevail—is

‘contrary to . . . clearly established Federal law, as determined by

the Supreme Court of the United States.’ ”).

USCA-02-C-0072—9-5-03

preme Court precedent,6 the court will deny Mr. Hammer

relief with respect to his second claim, as well.

Accordingly,

IT IS ORDERED that Mr. Hammer’s petition be and the

same is hereby DENIED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit