In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2631

JOACHIM E. DRESSLER,

Petitioner-Appellant,

v.

GARY R. MCCAUGHTRY,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 97 C 431--William E. Callahan, Jr., Magistrate Judge.

Argued October 26, 2000--Decided February 1, 2001

 Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

 EVANS, Circuit Judge. James Madden was last seen

alive during the early evening hours of June 26,

1990, in the town of Raymond, Wisconsin. Two days

later his legs and torso were found in yellow

plastic bags in a farmer’s field approximately 3

miles southwest of the site of his disappearance.

Madden’s skull and arms were discovered 2 weeks

later--also enclosed in yellow plastic bags--

approximately 3 miles northeast of the

disappearance site. Tests revealed that Madden

was the victim of a vicious attack: his genitalia

and several other organs were cut from his body;

his ankles, wrists, and neck exhibited ligature

marks; and fragments, consistent with metal

bullets, were embedded in his skull. Madden’s

wounds demonstrated that the mutilation occurred

both before and after his death.

 Prior to his disappearance, Madden was

soliciting door-to-door for the Citizens for a

Better Environment. Madden was last seen by the

next-door neighbors of Joachim Dressler and his

scheduled route would have made Dressler’s home

his next stop. Due to these circumstances, the

fact that Dressler was home alone the night of

Madden’s disappearance, and Dressler’s admission

that he (at least at one time) owned yellow trash

bags, the investigation focused on Dressler.

Pursuant to a warrant, police searched Dressler’s
home, seizing a number of items including

firearms, knives, saws, ropes, and bloodstain

samples. In addition, the police seized a

briefcase which contained videotapes,

photographs, and magazines depicting murder and

mutilation victims, as well as homosexual

pornography. With these discoveries, Dressler

became an even hotter suspect, but no arrest was

made.

 A major break in the investigation came several

weeks later on August 8, when Sherwin Beyer, a

neighbor of Dressler’s, reported to the Racine

County sheriff’s department that Dressler

admitted to him that he was responsible for

Madden’s death. Specifically, Dressler told Beyer

that Madden was soliciting at Dressler’s home

when they discovered they had a mutual interest

in guns. Dressler and Madden went to the back

yard to do some practice shooting with a rifle.

At some point, Dressler returned to the house to

retrieve a handgun and, upon returning,

accidentally shot Madden in the back of the head

while clearing the gun. Dressler told Beyer he

then cut out Madden’s brain and put it down the

garbage disposal. Shortly after this new

information came to light, Dressler was arrested

and charged with first degree intentional

homicide.

 Based on the materials found in Dressler’s

home, and the nature and extent of Madden’s

wounds, the State’s theory of the offense was

"homosexual overkill." Although the murder weapon

was never specifically identified, the State

introduced into evidence various weapons found at

Dressler’s home in order to demonstrate that he

had the means to inflict the type of injuries

Madden suffered. In addition, the videotapes and

pictures seized from Dressler’s home played a

prominent role in the State’s case. The trial

court admitted, over Dressler’s objections, these

materials as "other acts" evidence under

Wisconsin Statute sec. 904.04(2), holding that

they were relevant to the State’s theory of

homosexual overkill because they were probative

of Dressler’s homosexuality and fascination with

violence.

 Dressler’s defense centered on the lack of

physical evidence linking him to Madden’s murder

and on demonstrating that others could have been

responsible for the crime. The defense did not

deny Dressler’s statement to Beyer, but rather

presented expert testimony on an alcohol-related

phenomenon called confabulation. The defense

expert testified that alcohol abusers, like

Dressler, may invent stories based upon a

combination of truth and imagination in order to

explain alcohol-induced memory loss. Dressler

argued that the story he told Beyer was
confabulated from two separate incidents. First,

he pointed to the testimony of Keith Erickson,

who told the jury that he came to Dressler’s home

approximately 2 weeks after the Madden murder to

inquire about a car Dressler was selling. After

discovering that he and Dressler shared an

interest in guns, they shot a rifle in Dressler’s

back yard, and at some point Dressler went back

inside the house and returned with a handgun.

When they were finished shooting, Dressler and

Erickson engaged in homosexual sex. Second,

Dressler flagged for the jury certain questions

Racine County Sheriff Robert Rohner asked him

during an August 1, 1990, interrogation.

Specifically, Sheriff Rohner told Dressler that

he believed Dressler shot Madden in the head,

broke open his skull, and put his brain down the

garbage disposal and into the septic system.

Dressler argued that his "confession" to Beyer

was a figment of his imagination which combined

these two incidents. The jury didn’t buy

Dressler’s confabulation theory and found him

guilty of first degree intentional homicide.

 On a motion for postconviction relief in the

trial court, Dressler objected for the first

time, on specific First Amendment grounds, to the

introduction of his videotapes and pictures into

evidence./1 In opposing Dressler’s motion the

State did not argue that this objection was

untimely or barred for any other procedural

reason. The trial court denied Dressler’s motion

without setting forth its reasoning.

 Dressler appealed to the Wisconsin Court of

Appeals, asking that his conviction be reversed

on numerous grounds, including (1) the trial

court’s refusal to strike certain prospective

jurors for cause, (2) the admission of numerous

pieces of evidence, including the videotapes and

pictures found in his home, (3) the alleged

insufficiency of the evidence, (4) the trial

court’s refusal to give his proposed jury

instructions, and (5) alleged prosecutorial and

judicial misconduct. The Court of Appeals

addressed and rejected most of these alleged

errors on the merits. With respect to Dressler’s

First Amendment objection to the videotapes and

photographs depicting intentional violence and

homosexual acts, however, the court held that

"[t]his argument was not presented to the trial

court and we will not consider it for the first

time on appeal." State v. Dressler, 1993 WL

469759, at *6 (Wis. Ct. App. Nov. 17, 1993).

Dressler’s petition for review before the

Wisconsin Supreme Court and his petition for

certiorari to the United States Supreme Court

were denied.

 On April 22, 1997, Dressler petitioned the
United States District Court for the Eastern

District of Wisconsin for a writ of habeas

corpus, setting forth eight grounds in support of

his prayer for relief, which substantially mirror

the arguments he presented to the Wisconsin Court

of Appeals. Because Dressler’s petition was filed

after the effective date of the Antiterrorism and

Effective Death Penalty Act, Pub. L. No. 104-132,

110 Stat. 1214, Magistrate Judge William E.

Callahan, Jr. reviewed Dressler’s claims that

were adjudicated on the merits by the Wisconsin

Court of Appeals (i.e., all but the First

Amendment claim) under the standard set out in 28

U.S.C. sec. 2254(d). Finding that the state court

had not made "a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States[,] . . . or

that was based on an unreasonable determination

of the facts in light of the evidence presented

in the State court proceeding," 28 U.S.C. sec.

2254(d), the judge declined to issue a writ. The

judge went on to reject Dressler’s First

Amendment argument on both procedural and

substantive grounds, applying the de novo

standard of review that prevailed prior to the

Antiterrorism and Effective Death Penalty Act.

See Milone v. Camp, 22 F.3d 693, 698 (7th Cir.

1994). First, in reliance on the Wisconsin Court

of Appeals’ opinion, the judge held that Dressler

procedurally defaulted his First Amendment claim

by failing to raise it, "in any form," before the

trial court./2 Second, the judge held that the

introduction of the videotapes and pictures found

in Dressler’s home did not implicate his First

Amendment rights. He was not tried for possession

of these materials, but for murder, and the fact

that he was a homosexual with a peculiar interest

in death and mutilation supported the State’s

theory of the case.

 Unwilling to accept defeat, Dressler asked Judge

Callahan to issue a certificate of appealability

pursuant to 28 U.S.C. sec. 2253(c), a necessary

prerequisite to this appeal./3 Citing the

dissent in United States v. Giese, 597 F.2d 1170

(9th Cir. 1979), the judge found that Dressler’s

First Amendment argument "is debatable among

jurists of reason or, at least, is one that is

adequate to deserve encouragement to proceed

further." Accordingly, he certified that issue.

The judge refused to issue a certificate of

appealability as to Dressler’s other arguments,

and we decline Dressler’s invitation to expand

the certificate to include them. We therefore

address only Dressler’s First Amendment argument,

which is borderline frivolous at best.

 The first step in our analysis is to determine

whether Dressler gave the state court "a full and
fair opportunity to review" his claims "through

its own judicial processes before asserting

federal review." Farrell v. Lane, 939 F.2d 409,

410 (7th Cir. 1991); see also 28 U.S.C. sec.

2254(b). If he either failed to exhaust all

available state remedies or raise all claims

before the state courts, his petition must be

denied without considering its merits. See Thomas

v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000).

A claim that is procedurally defaulted can be

rehabilitated and presented in a habeas petition

only if the prisoner can demonstrate cause and

prejudice for the default, or show that a failure

to grant relief would work a fundamental

miscarriage of justice. Coleman v. Thompson, 501

U.S. 722, 750 (1991). Here, Judge Callahan denied

Dressler’s habeas petition in part because,

according to the Wisconsin Court of Appeals, he

never presented his First Amendment objection to

the trial court, and therefore he procedurally

defaulted the claim.

 The State now concedes that the basis of the

judge’s finding of procedural default--the

Wisconsin Court of Appeals’ conclusion that

Dressler never presented his First Amendment

argument to the trial court--was erroneous. The

State argues, however, that Dressler’s failure to

object (on First Amendment grounds) at the time

the videotapes and pictures were admitted into

evidence effected the procedural default, and

that the default was not cured by the belated

assertion of the First Amendment objection in the

postconviction motion. The State says a timely

objection is required, Wis. Stat. sec.

901.03(1)(a), which means one must be made "’as

soon as the opponent might reasonably be aware of

the objectionable nature of the testimony.’"

Simpson v. State, 266 N.W.2d 270, 276 (Wis. 1978)

(citing West v. State, 246 N.W.2d 675, 681 (Wis.

1976)); see also State v. Waites, 462 N.W.2d 206,

211 (Wis. 1990) (failure immediately to object to

in-court identification of photograph of accused

waived issue on appeal); Chitwood v. A.O. Smith

Harvestore Prods., Inc., 489 N.W.2d 697, 704

(Wis. Ct. App. 1992) (defendants’ failure to move

to strike testimony at the close of evidence,

when it first became clear that a sufficient

foundation would not be laid, waived issue on

appeal). Here, Dressler made no specific First

Amendment objection to the introduction of the

videotapes and pictures when they were introduced

into evidence. This violation of the

contemporaneous objection rule would, under most

circumstances, constitute an independent and

adequate state procedural ground for rejecting

Dressler’s appeal, precluding habeas review./4

Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).

 There are two problems with the State’s
argument under the very unique facts of this

case, however. First, the Wisconsin Court of

Appeals did not rely upon the contemporaneous

objection rule in rejecting Dressler’s First

Amendment claim; rather, it relied upon the

erroneous conclusion that Dressler waived the

argument by completely failing to present it to

the trial court at any time. Thus, the court did

not confront the question of whether an objection

to the admission of evidence via a postconviction

motion, which the trial court denied without

explaining whether its reason(s) were procedural

or substantive, is sufficient to preserve an

issue for appeal in the absence of a

corresponding trial objection. The parties have

cited no Wisconsin case directly addressing this

issue. Second, when faced with the belated

assertion of the First Amendment argument in

Dressler’s postconviction motion, the state

prosecutor did not contend that the issue was

waived. Thus, Dressler argues that the State has

waived any procedural bar to consideration of the

merits of his First Amendment argument. Because

these are close questions of state procedural

law, we are disinclined to decide them. For that

reason, we’ll consider the merits of Dressler’s

argument, which, as we said, goes nowhere.

 The trial court admitted the videotapes and

pictures of intentional violence and homosexual

acts pursuant to Wis. Stat. sec. 904.04(2), which

authorizes the introduction of "[e]vidence of

other crimes, wrongs, or acts . . . when offered

. . . as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or

absence of mistake or accident." According to the

trial court, the "act" in this case was

Dressler’s possession of the materials in

question. The videotapes and pictures depicting

intentional violence were admitted as evidence of

Dressler’s motive, intent, and plan to murder

Madden, as well as evidence that Madden’s death

was not an accident. The pictures of homosexual

acts, the trial court held, were probative of

Dressler’s homosexual orientation and therefore

supported the State’s homosexual overkill theory,

i.e., that Madden’s death was particularly brutal

and violent. We review Dressler’s claim that

these rulings violated his First Amendment

rights, a question of law, de novo. See generally

Potts v. City of Lafayette, Ind., 121 F.3d 1106,

1110-11 (7th Cir. 1997).

 Dressler mounts a two-pronged argument, starting

with the undisputed premise that the videotapes

and photographs found in his home are protected

by the First Amendment. He then argues that the

materials depicting intentional violence were

inadmissible evidence of his propensity for

violence and that the admission of these
materials permitted the jury to make the

impermissible presumption that he acted in

conformity with the depictions in the

photographs. The State’s use of the videotapes

and pictures, Dressler contends, will have a

chilling effect on the exercise of the public’s

protected right to read such materials because

the ideas depicted will be attributed to those

who possess them. With respect to the pictures of

homosexual acts, Dressler argues that the State’s

theory of the case employed backward reasoning.

Dressler points out that the homosexual overkill

theory did not develop until the pictures were

discovered in Dressler’s home; Madden’s body

exhibited no signs of homosexual activity, a

circumstance common in cases of homosexual

overkill. Thus, the State used the pictures to

both create and corroborate its homosexual

overkill theory: the murder was homosexual

overkill because Dressler is a homosexual. This

reasoning, according to Dressler, presumed his

guilt.

 As the State points out, much of Dressler’s

argument seeks to rehash the trial court’s

evidentiary rulings concerning the relevance of

the videotapes and pictures. Indeed, Dressler’s

contention that those materials are inadmissible

evidence of his propensity for violence has

nothing to do with the First Amendment, but

rather directly challenges the trial court’s sec.

904.04 analysis. We consider this argument beyond

the scope of the certificate of appealability,

which limits our review to whether "the

introduction into evidence of [the videotapes and

pictures], the possession of which were protected

by the First Amendment, and which were then used

by the State to help prove its theory of

’homosexual overkill’ violated the petitioner’s

First Amendment rights." In addition, evidentiary

rulings of state trial courts are normally not

subject to habeas review. See United States ex

rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th

Cir. 1974). In order to claim a right to relief,

a petitioner must establish that the incorrect

evidentiary ruling was so prejudicial that it

violated his due process right to a fundamentally

fair trial, creating the likelihood that an

innocent person was convicted. See Thompkins v.

Cohen, 965 F.2d 330, 333 (7th Cir. 1992).

 In any event, we reject Dressler’s relevance

and propensity arguments. The fact that Dressler

maintained a collection of videos and pictures

depicting intentional violence is probative of

the State’s claim that he had an obsession with

that subject. A person obsessed with violence is

more likely to commit murder, and therefore the

videos and photographs are relevant. See Wis.

Stat. sec. 904.01 ("’Relevant evidence’ means
evidence having any tendency to make the

existence of any fact that is of consequence to

the determination of the action more probable or

less probable than it would be without the

evidence."). Similarly, a person who possesses

photographs of homosexual acts coupled with

depictions of extreme violence might be more

inclined to commit a crime exhibiting the

characteristics of homosexual overkill.

 We also believe that the videos and pictures

are not inadmissible character or propensity

evidence. Although evidence of the general

character of a defendant is inadmissible to prove

he acted in conformity therewith, sec. 904.04(2)

contains an exception to the rule of

inadmissibility for evidence offered to prove,

among other things, motive, intent, plan, or

absence of mistake or accident. Here, the

pictures depicting violence were offered to prove

Dressler’s fascination with death and mutilation,

and this trait is undeniably probative of a

motive, intent, or plan to commit a vicious

murder. In addition, Dressler’s possession of

those materials rebuts the portion of his

statement to Beyer in which he claimed that

Madden’s killing was accidental. Finally, the

pictures of homosexual acts, given the State’s

homosexual overkill theory, clearly go to motive.

Although the videotapes and pictures may also

prove bad character or propensity, they were

offered for permissible purposes./5

 Dressler’s First Amendment argument takes a

slightly different tack. Citing a litany of cases

setting out the well-established protections of

the First Amendment, Dressler contends that the

trial court violated his rights by permitting the

jury to attribute to him the ideas depicted in

the videos and photographs. Even if the materials

were relevant to his state of mind, and even if

they were offered for a purpose permitted by sec.

904.04(2), Dressler maintains that they still

must be excluded because their admission

"effectively eviscerate[s] the First Amendment

protection to look at, read or possess such

materials."

 The fundamental flaw in Dressler’s First

Amendment argument, and the major distinguishing

factor in the string of broad First Amendment

cases he relies upon, is that he was not

convicted of possessing, distributing, or looking

at the videos and pictures in question. Although

they may have helped convict Dressler of murder,

he never explains how his right to possess or

look at them was affected by their use as

evidence against him. And Dressler dramatically

overstates the potential chilling effect of the

evidentiary use of these materials, as they
formed only one link in the long chain of

evidence that proved his guilt. Dressler, 1993 WL

469759, at *12. Innocent citizens, who presumably

would not face a mountain of other circumstantial

evidence of their guilt, need not fear a murder

prosecution based on the mere possession of

lawful videotapes and photographs.

 The guilty, however, should be wary. As we held

in Lac du Flambeau Band of Lake Superior Chippewa

Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991

F.2d 1249, 1260 (7th Cir. 1993), "[w]hile the

[F]irst [A]mendment in fact does preserve the

right to speak offensively, it does not provide

a shield against the logical import of that

speech." In that case, a group formed to protest

the exercise of fishing rights granted to Native

Americans appealed an injunction imposed against

its members. The group argued that the district

judge erred in considering speech protected by

the First Amendment as evidence of racial animus.

Id. at 1259. We soundly rejected this argument,

holding that merely drawing logical conclusions

from the content of protected speech does not

interfere with the exercise of the right to

speak. Id. at 1260./6 That is exactly what

happened here: the jury was permitted to draw an

inference about Dressler’s state of mind based on

the fact that he maintained a collection of

photographs depicting fates similar to that

suffered by Mr. Madden. 

 Not only does this inference have nothing to do

with the First Amendment, but it is eminently

logical as well. If Dressler were accused of

causing an explosion, a jury could logically

infer his guilt from the fact that a bomb-making

manual was found at his home. There is no

principled way to distinguish Dressler’s

videotapes and pictures from the bomber’s manual.

 Finally, although the issue is beyond the scope

of the certificate of appealability, we’ll say a

word about the allegedly circular reasoning

employed by the State with respect to proof of

the homosexual overkill theory. According to

Dressler, the only evidence of homosexual

overkill presented by the State was his status as

a homosexual, which was established solely by the

pictures discovered in his home. The premises of

Dressler’s argument are faulty, however. The

State’s expert, Dr. Jeffrey Jentzen, testified

that the wounds suffered by Madden were

consistent with homosexual overkill, and

Dressler’s homosexuality was established not only

by the materials seized from his home, but also

by the testimony of Keith Erickson, who admitted

engaging in homosexual acts with Dressler. More

importantly, the homosexual overkill theory was

merely the State’s explanation of Dressler’s
motive, which is not an essential element of the

State’s case. See Wis. JI-Criminal 175 ("While

motive may be shown as a circumstance to aid in

establishing the guilt of a defendant, the State

is not required to prove motive on the part of a

defendant in order to convict.").

 The denial of habeas relief is AFFIRMED.

/1 The Wisconsin Court of Appeals found that

Dressler had not presented his First Amendment

objection to the trial court. State v. Dressler,

1993 WL 469759, at * 6 (Wis. Ct. App. Nov. 17,

1993). This finding is factually incorrect.

Whether Dressler’s chosen method of presenting

that objection--by postconviction motion rather

than by a contemporaneous objection--is

sufficient to preserve the issue for appellate

review is an entirely different question,

however.

/2 The judge cannot be faulted because the

postconviction motion in which Dressler raised

his First Amendment claim was not included in the

record provided to the him. The State now

concedes that the First Amendment objection was

raised in that motion.

/3 An ambiguity in the language of sec. 2253(c)

creates some question as to whether a district

judge (or in this case a magistrate judge) has

the power to issue a certificate of

appealability. See Williams v. United States, 150

F.3d 639, 640 (7th Cir. 1998). We follow our

previous holding that either a district judge (or

magistrate judge) or a circuit judge may issue

the necessary certificate. See id. at 640-41.

/4 State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis.

1994), is a red herring. In that case the

Wisconsin Supreme Court overruled a prior

decision holding that prisoners may raise on

collateral attack any constitutional argument

they omitted on direct appeal. See Bergenthal v.

State, 242 N.W.2d 199, 203 (Wis. 1976). Now,

prisoners must present a "sufficient reason" for

their failure to raise such arguments. EscalonaNaranjo, 517 N.W.2d at 164. Here, however,

Dressler did raise his First Amendment argument

on direct appeal; the State asserts that the

argument was waived at the trial court level. So

neither Escalona-Naranjo nor Bergenthal applies

to this case. In any event, Dressler filed his

direct appeal prior to the publication of

Escalona-Naranjo, so, if anything, the rule set

out in Bergenthal would apply. See Liegakos v.

Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997). 

/5 Dressler is misguided to the extent he argues the

materials were inadmissible because his act of
possessing them was lawful. The statute

explicitly permits the admission of evidence of

"other crimes, wrongs, or acts," Wis. Stat. sec.

904.04(2) (emphasis added), and the other "acts"

need not be criminal. See State v. Peters, 534

N.W.2d 867, 875 (Wis. Ct. App. 1995).

/6 To the extent our decisions in Lac du Flambeau or

in this case conflict with the dissent in Giese,

597 F.2d at 1208-09, we reject the reasoning

therein.