Hardill Bowie v. Michael Thurmer

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 3, 2008
Decided August 5, 2009
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07-2023
HARDILL BOWIE,
Petitioner-Appellant,
v.
MICHAEL THURMER,
Respondent-Appellee.
Appeal from the
United States District Court for the
Eastern District of Wisconsin.
No. 06 C 640
J. P. Stadtmueller,
Judge.
O R D E R
Hardill Bowie was convicted of armed robbery in a Wisconsin state court and
sentenced to ten years’ imprisonment. Bowie appealed his conviction on the ground that
his trial counsel was ineffective. The Wisconsin Court of Appeals, applying the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984), denied his claim and affirmed the
conviction. The Wisconsin Supreme Court denied Bowie’s petition for review. Bowie then
filed a petition for a writ of habeas corpus in the district court renewing his ineffective-
assistance-of-counsel claim. The district court analyzed the claim under the standard of
review prescribed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2254(d), and held that the Wisconsin Court of Appeals did not unreasonably
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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apply Strickland. We agree and affirm.
AEDPA requires Bowie to establish that the Wisconsin Court of Appeals’ decision
was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Bowie argues only that the state court’s decision was an “unreasonable application” of
Strickland. Under Strickland, a defendant must establish that his trial counsel performed
below minimal professional standards and that the deficient performance prejudiced him.
466 U.S. at 687. Prejudice under Strickland means “a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. For purposes of habeas review, a “state court decision must be more than
incorrect from the point of view of the federal court.” Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002). Rather, the state court’s decision must “lie well outside the boundaries of
permissible differences of opinion.” Id.
Bowie first challenges the Wisconsin Court of Appeals’ treatment of his attorney’s
failure to object to the State’s evidence that Bowie had acquired a handgun after the
robbery and that he kept it in his dorm room. The state appellate court concluded that
counsel’s failure to object did not amount to ineffective assistance under Strickland because
the evidence was admissible under Wisconsin law. The court explained that the evidence
was admissible to rehabilitate the credibility of Tiffany Peters, Bowie’s former girlfriend
who claimed to be his accomplice in the robbery and who had testified that Bowie
committed the robbery with a toy gun. Bowie’s counsel had impeached Peters by pointing
out inconsistences between her prior statements to police and her trial testimony regarding
the physical appearance of the toy gun. Defense counsel’s overall strategy was to portray
Peters as a scorned lover who fabricated her account of the robbery to seek revenge. The
prosecutor responded on redirect by asking Peters about her knowledge of Bowie’s later
possession of a real gun; he later introduced the gun, which was found in a search of
Bowie’s apartment. The Wisconsin Court of Appeals explained that:
Peters testified that she knew Bowie possessed a real gun and that he acquired
it after the robbery. The prosecutor appropriately argued that, if she were
merely trying to get Bowie in trouble, she would not have corrected the police
impression that he used a real gun. The added detail that he used a toy gun,
even though Peters knew he possessed a real gun, enhances her credibility.
Given the probative value of this evidence in rehabilitating Peters’ account of the robbery,
the state appellate court held that the gun evidence was not impermissible “other acts”
evidence under Wisconsin law.
Bowie essentially argues that the state appellate court erred in holding that the

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We have granted habeas relief on state-law evidentiary questions in very rare cases where
1
the state court’s resolution of the evidentiary dispute was clearly unreasonable. See Martin v.
Grosshans, 424 F.3d 588, 591 (7th Cir. 2005) (granting habeas for ineffective assistance of counsel
where state appellate court’s determination of relevance and prejudice was clearly unreasonable).
Were we inclined to consider the issue here, we would reject Bowie’s various arguments on the
admissibility of this evidence. For example, Bowie wrongly asserts that Wisconsin evidence law
prohibits the introduction of “other acts” evidence for the purpose of rehabilitating witnesses. At
least one published decision of the court of appeals holds that the State can introduce “other acts”
evidence to show witness bias, see State v. Schroedl, 647 N.W.2d 467 (Wis. Ct. App. 2002); using
“other acts” evidence to rehabilitate a witness is akin to using “other acts” evidence to show the
witness is biased. Moreover, Wisconsin’s “other acts” evidence rule is very similar to Rule 404(b) of
the Federal Rules of Evidence, and this court has held that Rule 404(b) permits introduction of “other
acts” evidence to rehabilitate a witness testifying against the defendant. See, e.g., United States v.
Holly, 167 F.3d 393, 395 (7th Cir. 1999). We also decline Bowie’s invitation to second-guess the state
court’s weighing of the probative value of the evidence against the danger of unfair prejudice.
evidence was admissible and nonprejudicial. But on habeas review federal courts do not
second-guess state courts on matters of state law. See Waddington v. Sarausad, 129 S. Ct. 823,
832 (2009) (“The Washington Supreme Court expressly held that the jury instruction
correctly set forth state law, . . . and we have repeatedly held that ‘it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.’”
(quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991))); Huusko v. Jenkins, 556 F.3d 633, 637
(7th 2009) (“For a federal court cannot issue a writ of habeas corpus that rests on a belief
that a state court has misunderstood or misapplied state law.”); Rice v. McCann, 339 F.3d
546, 549 (7th Cir. 2003) (“[W]e note that we will not decide whether [the passenger’s]
suppression hearing testimony was in fact reliable enough to be admitted into evidence at
Rice's trial. Our doing so would usurp the role of the state courts in determining the
admissibility of evidence at trial under state law . . . .”). We see no reason to entertain
Bowie’s argument that the Wisconsin Court of Appeals misapplied state evidence law.1
Bowie next challenges the state appellate court’s evaluation of his counsel’s failure
to ask for a limiting instruction in response to a brief, improper remark made by the
prosecutor during closing argument. The prosecutor asked the jury to consider this
question: “Why does this college student have a loaded .357 in his dorm room?” He then
continued with a long argument explaining why Peters’ knowledge of Bowie’s possession
of a real handgun at the time she reported the crime to police should bolster the credibility
of her statements to law enforcement as well as her subsequent testimony that Bowie
committed the crime with a toy gun. The state appellate court acknowledged that the
prosecutor’s question was improper but agreed with the state trial judge that counsel’s
failure to request a limiting instruction was a reasonable trial strategy. In any event, the
court held, counsel’s failure to request a limiting instruction in response to this “single

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sentence” did not undermine confidence in the trial’s outcome.
We need not address the state court’s conclusion that counsel’s failure to request a
limiting instruction was a reasonable strategic decision (though it certainly appears to be);
the court’s conclusion on prejudice was objectively reasonable. We review the state
appellate court’s application of the Strickland standard of prejudice in light of the context in
which the prosecutor’s statement was made and also within the context of the trial as a
whole. The prosecutor’s comment was exceedingly brief and was, as we have noted, part
of a long colloquy discussing how Peters’ knowledge of Bowie’s possession of a real gun
bolstered her credibility, which was a permissible line of argument. When viewed within
the context of the entire trial, the prosecutor’s passing reference does not undermine
confidence in the outcome of the proceedings; more pertinent under AEDPA’s standard of
review, the state court reasonably concluded that counsel’s failure to request a limiting
instruction was not prejudicial.
Bowie also argues that the Wisconsin Court of Appeals unreasonably applied
Strickland when it concluded that he was not prejudiced by his counsel’s failure to impeach
Peters with evidence of her prior misdemeanor conviction for theft under false pretenses.
The state court reasoned that other evidence in the record raised sufficient questions about
Peters’ credibility that the incremental impeachment value of her prior conviction was not
enough to undermine confidence in the outcome. This is not an unreasonable application
of Strickland.
Were we reviewing the claim of prejudice based on a failure to impeach a witness on
direct review, we would consider three factors: the value of the omitted impeaching
evidence, the effectiveness of the defense absent that evidence, and the strength of the
government’s case. See, e.g., Stephens v. Hall, 294 F.3d 210, 218 (1st Cir. 2002). Here, the
impeachment value of Peters’ single misdemeanor conviction is not as great as Bowie
contends. To be sure, Wisconsin law observes that “‘one who has been convicted of a crime
is less likely to be a truthful witness than one who has not been convicted.’” State v. Kuntz,
160 Wis. 2d 722, 752 (Wis. 1991) (quoting Nicholas v. State, 49 Wis. 2d 683, 688 (Wis. 1971)).
But the strength of this evidence is tempered by the limit Wisconsin places on its use;
counsel would have been limited on cross-examination to “ask[ing] the witness if he has
ever been convicted of a crime and if so how many times,” and “[i]f the witness's answers
are truthful and accurate, then no further inquiry may be made.” Id. (internal citations
omitted). Here, Bowie’s counsel amply impeached Peters with other evidence—chiefly, the
discrepancies between her trial testimony and her statements to the police—and the
government’s evidence regarding Bowie’s role in the robbery was otherwise very strong.
This is not a case in which the defense offered little or no other evidence raising
doubts about the witness’s credibility such that the failure to use the prior conviction for

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impeachment might have played a larger role. Bowie’s counsel consistently drew out
evidence portraying Peters as a revenge-seeking, jilted ex-girlfriend, and he highlighted the
inconsistencies between her trial testimony and her initial statements regarding the toy
gun. The state appellate court also noted that Peters’ admitted role in the robbery informed
the jury that she was an individual with a criminal history—a fact that is itself probative of
her truthfulness. Furthermore, eyewitnesses corroborated much of Peters’ testimony.
Under these circumstances, the state appellate court reasonably concluded that the
additional impeachment value of her prior misdemeanor conviction was not enough to
undermine confidence in the trial’s outcome.
Bowie also challenges the state appellate court’s rejection of his claim that his
counsel was ineffective because he failed to ask the trial judge to strike the entire jury panel
after a comment by a potential juror who worked as a correctional officer at the local jail. In
response to a voir dire question regarding his ability to remain fair and impartial, the
prospective juror said: “May have served—I don't know if I served [Bowie] breakfast, but
I'm around him all the time, around the inmates, and you hear all the different stories.”
The trial judge immediately stopped the juror, and Bowie's counsel moved to strike him for
cause. The court granted the motion. Bowie’s attorney later discussed with the court his
concern that this statement left an impression with potential jurors that Bowie was
incarcerated, but the court suggested that the statement was probably not clear enough to
create that inference. Counsel then discussed the issue with Bowie and ultimately decided
not to request a curative instruction because it would only highlight the matter.
The Wisconsin Court of Appeals did not specifically address the question of
whether counsel’s failure to move to strike the entire jury panel was deficient
representation; the court held instead that the omission was not prejudicial. Bowie argues
that the juror’s comment created an unreasonable risk that the jury would be unable to
apply the presumption of innocence. He maintains that the juror’s statement that he hears
“all the different stories” implied that the juror had reason to believe that Bowie was a bad
person and that the statement in general implied that Bowie was incarcerated. He claims
that this undermined the jury’s ability to apply the presumption of innocence and required
a finding of prejudice.
Bowie’s claim relies on Estelle v. Williams, 425 U.S. 501, 504 (1976), which held that a
state violates a defendant’s due-process rights when it compels him to wear prison garb
before the jury because that clothing is a “continuing influence” that creates an
unacceptable risk to the presumption of innocence. Estelle is inapposite. Estelle holds that a
defendant’s right to due process is violated only when the state compels him to appear in
prison garb. See id. at 512-13. There is no issue of compulsion here. The potential influence
of the prospective juror’s stray comment on the ability of the rest of the jurors to apply the
presumption of innocence is not similar to the continuing influence of a defendant

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appearing in prison garb throughout the duration of his trial.
Even if we assumed Bowie’s counsel’s failure to move to strike the entire jury panel
amounted to deficient performance, Estelle would not excuse Bowie from establishing that
the state court’s evaluation of prejudice under Strickland was unreasonable. He has failed
to do so. The juror’s comments were exceedingly brief and somewhat ambiguous.
Although the juror was responding to a question about his fairness and impartiality, his
comment that he hears “all the different stories” was facially neutral. It is also noteworthy
that the court immediately silenced the juror after he made that statement. As to the
inference that Bowie had been or was incarcerated, we note that Bowie raised this inference
himself by testifying about his prior convictions. And even if Bowie had not raised that
inference himself, jurors in a felony robbery case “are likely to presume that a criminal
defendant, irrespective of his or her guilt or innocence, has spent at least some time in
custody as a result of being charged with a crime.” Burton v. Renico, 391 F.3d 764, 778 (6th
Cir. 2004). On these facts it was hardly unreasonable for the state court to conclude that
Bowie was not prejudiced by his counsel’s failure to move to strike the entire jury panel.
Finally, Bowie asks us to consider the alleged errors by trial counsel together and
determine whether their cumulative effect sufficiently undermines confidence in the
outcome of his trial. It does not appear that the Wisconsin Court of Appeals considered the
cumulative effect of counsel’s alleged errors. When the state court does not decide an issue
raised in a habeas petition, AEDPA’s deferential standard of review does not apply. We
must therefore evaluate Bowie’s position directly under Strickland, and in doing so, we
reject his claim for habeas relief. For the reasons we have already explained, the alleged
errors of counsel were so minor that, even taken together, they do not raise a reasonable
probability that the outcome of Bowie’s trial would have been any different.
AFFIRMED.

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