Shane McCarthy v. William Pollard

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2435
SHANE MCCARTHY,
Petitioner-Appellant,
v.
WILLIAM POLLARD,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:10-cv-00429-WCG—William C. Griesbach, Judge.
ARGUED JUNE 2, 2011—DECIDED AUGUST 24, 2011
Before BAUER, POSNER and MANION, Circuit Judges.
BAUER, Circuit Judge. Shane McCarthy was convicted
in the Milwaukee County Circuit Court of causing
great bodily harm by operating a motor vehicle while
under the influence of cocaine, in violation of Wis.
Stat. § 940.25(1)(am). After unsuccessfully seeking post-
conviction relief in Wisconsin state courts, McCarthy
filed a petition for writ of habeas corpus in the United
States District Court for the Eastern District of Wisconsin.
The district court denied relief. We affirm.

-- 1 of 16 --

2 No. 10-2435
I. BACKGROUND
On December 3, 2004, McCarthy was driving through
Milwaukee in a car owned by his girlfriend, Jessica
Poetsch. He stopped to solicit an undercover Milwaukee
police officer, offering her drugs in exchange for oral sex.
Upon the undercover officer’s signal, additional officers
surrounded him and ordered him to get out of his car.
McCarthy refused and drove away at a high rate of speed.
Soon thereafter, McCarthy ran through a stop sign and
crashed into a police call box. Officers again ordered
McCarthy out of the car, but he again refused. While
driving in reverse, he continued his flight until he
collided with two other vehicles, seriously damaging
the vehicles and injuring seven people. Police finally
apprehended McCarthy as he ran toward an alley.
McCarthy was transported to a nearby hospital, where
physicians treated his injuries and placed him in a medi-
cally induced coma that lasted from December 4, 2004 to
December 29, 2004. Tests conducted at the time of his
hospital admission revealed that McCarthy had three
different cocaine metabolites in his system.
While McCarthy remained in a coma, the police asked
the prosecutor whether the vehicle should be retained for
evidence. The prosecutor replied that it should not.
Pursuant to its protocol, the City then notified Poetsch of
her right to reclaim her car. Although she attempted to
reclaim it on December 6, 2004, the City would not
release it to her because she did not have proof of title.
Because Potesch failed to return with proof of title
within fifteen days of the accident, the City destroyed
the vehicle on December 22, 2004.

-- 2 of 16 --

No. 10-2435 3
McCarthy emerged from his coma on December 29, 2004.
Prosecutors filed a criminal complaint against him five
days later. Although McCarthy swiftly filed a compre-
hensive discovery request demanding access to all
physical evidence related to the case, the vehicle he
was driving on the night of the accident had already
been destroyed.
II. DISCUSSION
A defendant who is charged under Wis. Stat.
§ 940.25(1)(am)—for causing great bodily harm by oper-
ating a vehicle under the influence of an intoxicant or
controlled substance—can avoid a conviction by proving
by a preponderance of the evidence that the victims
would have suffered great bodily harm even if the defen-
dant had been exercising due care and had not been
under the influence of an intoxicant or controlled sub-
stance. Wis. Stat. § 940.25(2)(a). McCarthy attempted to
avail himself of this affirmative defense at trial. He
argued that (1) he fled from the police because he
thought they were attempting to rob him; (2) he drove
toward the police call box in order to inform the police
about this supposed robbery; and (3) he crashed into
the call box because his brakes failed. Given the brake
failure, McCarthy argued, the victims would have
suffered great bodily harm even if he had not been
under the influence of cocaine. Because the jury con-
victed McCarthy under Wis. Stat. § 940.25(1)(am), we can
assume that it rejected this argument.

-- 3 of 16 --

4 No. 10-2435
A. Procedural History
Prior to trial, McCarthy moved to dismiss the charges
against him, arguing that the prosecution deliberately
destroyed the vehicle while he was in a coma in order
to prevent him from offering proof of the brake failure
at trial, in violation of his constitutional right to due
process under the Fourteenth Amendment. The trial
judge denied his motion, holding that there could be
no due process violation because (1) the State did not
possess or control the car, had no duty to preserve the
car or take possession of it, and had no obligation to
assume that the car constituted exculpatory evidence;
and (2) the City possessed and controlled the car, fol-
lowed normal procedures in notifying the owner of its
whereabouts, and had no reason to believe that the
car possessed evidentiary value. State v. McCarthy,
No. 2005CF000021, Motion Hearing (Oct. 28, 2005).
Having failed to obtain a dismissal of the charges,
McCarthy proceeded to trial. The jury convicted him
of three counts of causing great bodily harm by opera-
tion of a motor vehicle while under the influence of
cocaine.
McCarthy timely filed for postconviction relief in the
Milwaukee County Circuit Court, repeating the same
due process argument detailed above. The circuit court
denied this motion, stating in relevant part,
To the extent that the defendant again raises [the due
process argument he made in a pretrial motion],
his motion is denied for the same reasons set forth
by [the trial judge]. There was, and is, no showing

-- 4 of 16 --

No. 10-2435 5
under the applicable caselaw that the State was
aware of potentially exculpatory evidence and/or
acted with bad faith to suppress it. State v. Greenwold,
189 Wis. 2d 59, 68 (Ct. App. 1994). In addition, there
was, and is, no showing that the vehicle possessed
an exculpatory value that was apparent before it was
destroyed and that it was of such a nature that the
defendant would not be able to obtain comparable
evidence by any other reasonable means. State v.
Oinas, 125 Wis. 2d 487, 490 (Ct. App. 1985).
State v. McCarthy, No. 05CF000021, Decision and Order
Denying Motion for Postconviction Relief, at 5 (Dec. 18,
2007).
The Wisconsin Court of Appeals affirmed, holding
that even if the vehicle was “potentially exculpatory” evi-
dence, there was “no basis” to conclude that the vehicle
was destroyed in bad faith. State v. McCarthy, 2009 WL
2959634, *1 (Wis. Ct. App. Sept. 17, 2009). The Wisconsin
Supreme Court denied McCarthy’s petition for review.
State v. McCarthy, No. 2008AP398-CR (Feb. 23, 2010).
Having exhausted his state court remedies, McCarthy
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254 in the United States District Court for the Eastern
District of Wisconsin. The district court denied relief
pursuant to Rule 4 of the Rules Governing § 2254 Cases,
holding that “although the state courts recognized that
the car could potentially be exculpatory, there was no
indication that it was destroyed in bad faith,” and
that “[t]hese conclusions were not an unreasonable ap-
plication of clearly established federal law.” McCarthy

-- 5 of 16 --

6 No. 10-2435
v. Thurmer, 2010 WL 2102428, at *1 (E.D. Wis. May 21,
2010).
B. Standard of Review
Federal courts may only grant habeas relief to
petitioners who demonstrate that they are in custody “in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2245(a). In this case, our
habeas review is restricted by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), which
governs federal habeas review of state court criminal
convictions. Id.; Conner v. McBride, 375 F.3d 643, 648-49
(7th Cir. 2004).
Under the AEDPA, a petitioner for habeas relief must
establish that the state court proceedings resulted in a
decision that (1) was “contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court”; or (2) was “based
on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2). A federal court may issue a
writ of habeas corpus under the “contrary to” clause “if
the state court applies a rule different from the gov-
erning law set forth in [Supreme Court] cases, or if it
decides a case differently than [the Supreme Court has] on
a set of materially indistinguishable facts.” Bell v. Cone,

-- 6 of 16 --

No. 10-2435 7
McCarthy does not challenge the state court’s decision as 1
being “contrary to” clearly established federal law.
535 U.S. 685, 694 (2002). Alternatively, a federal court1
may grant relief under the “unreasonable application”
clause “if the state court correctly identifies the gov-
erning legal principle from [Supreme Court] decisions
but unreasonably applies it to the facts of the particular
case.” Id. The focus of the reasonableness inquiry is
on whether the state court’s application of clearly estab-
lished federal law is objectively unreasonable, not whether
it applied clearly established federal law correctly.
Id. Accordingly, when making this inquiry, a habeas
court must first determine what arguments or theories
could have supported the state court’s decision and
then ask if fairminded jurists could disagree about
whether those arguments or theories are inconsistent
with Supreme Court holdings. Cullen v. Pinholster, 131
S. Ct. 1388, 1402 (2011).
The relevant decision for purposes of our analysis
under the AEDPA is the decision of the last state court
to rule on the merits of the petitioner’s claim—in this
case, the decision of the Wisconsin Court of Appeals
denying postconviction relief. See Charlton v. Davis, 439
F.3d 369, 374 (7th Cir. 2006). Whether the Wisconsin
Court of Appeals’ decision ran afoul of AEDPA standards
is a legal determination that we review de novo. See
Byers v. Basinger, 610 F.3d 980, 987 (7th Cir. 2010); Conner,
375 F.3d at 650. However, we review the district court’s
factual determinations for clear error, and we presume

-- 7 of 16 --

8 No. 10-2435
that the state court’s factual determinations are correct
unless the petitioner can demonstrate by clear and con-
vincing evidence that they were unreasonable. Byers,
610 F.3d at 988; Conner, 375 F.3d at 649.
C. Due Process Analysis
Under the Due Process Clause of the Fourteenth Amend-
ment, criminal prosecutions must comport with pre-
vailing notions of fundamental fairness. California v.
Trombetta, 467 U.S. 479, 485 (1984). This standard of
fairness requires that defendants be afforded a mean-
ingful opportunity to present a complete defense. Id. To
safeguard this right, the Supreme Court developed
“what might loosely be called the area of constitutionally
guaranteed access to evidence.” Id. Taken together, “this
group of constitutional privileges delivers exculpatory
evidence into the hands of the accused, thereby pro-
tecting the innocent from erroneous conviction and
ensuring the integrity of our criminal justice system.” Id.
1. Rules Governing the Duty to Preserve Evidence
Under the Due Process Clause
The Supreme Court’s decisions in Trombetta and
Youngblood govern a state’s duty under the Due Process
Clause of the Fourteenth Amendment to preserve evi-
dence on behalf of a defendant. Trombetta, 467 U.S. at 480,
488-89; Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Over
the years, courts have fashioned different interpreta-
tions of the collective meaning of Trombetta and

-- 8 of 16 --

No. 10-2435 9
The Court in Youngblood was careful to distinguish Brady, 2
stating,
(continued...)
Youngblood. A brief summary of these two cases is thus
in order.
In Trombetta, the Supreme Court addressed the issue
of whether a state was required to preserve breath
samples used in conjunction with an Intoxilyzer test. The
Court held that the State had no such duty because
(1) the officers were acting in “good faith and in accord
with their normal practice”; (2) the evidence did not
“possess an exculpatory value that was apparent before
the evidence was destroyed”; and (3) the evidence was
not “of such a nature that the defendant would be
unable to obtain comparable evidence by other rea-
sonably available means.” Trombetta, 467 U.S. at 488-89.
Subsequently, in Youngblood, the Supreme Court ad-
dressed whether a state was required to preserve semen
samples that might have been useful to a criminal defen-
dant. The Court held that “unless a criminal defendant
can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute
a denial of due process.” Youngblood, 488 U.S. at 58. The
rationale behind this bad faith requirement is found
in Trombetta, which stated, “[w]henever potentially excul-
patory evidence is permanently lost, courts face the
treacherous task of divining the import of materials
whose contents are unknown and, very often, disputed.”
Youngblood, 488 U.S. at 69 n.6 (quoting Trombetta, 467
U.S. at 486).2

-- 9 of 16 --

10 No. 10-2435
(...continued)
The Due Process Clause of the Fourteenth Amendment, as
interpreted in Brady, makes the good or bad faith of the
State irrelevant when the State fails to disclose to the
defendant material exculpatory evidence. But we think the
Due Process Clause requires a different result when we
deal with the failure of the State to preserve evidentiary
material of which no more can be said than that it could
have been subjected to tests, the results of which might
have exonerated the defendant.
Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
Our interpretation of Trombetta and Youngblood differs
from that of Wisconsin courts. According to Wisconsin
courts, these cases stand for the proposition that a de-
fendant’s due process rights are violated if the police
(1) failed to preserve “apparently” exculpatory evidence,
leaving the defendant with no ability to obtain com-
parable evidence by any other reasonable means
(with this portion of rule deriving from Trombetta); or
(2) failed to preserve “potentially” exculpatory evidence
in bad faith (with this portion of the rule deriving
from Youngblood). See, e.g., State v. Greenwold, 525 N.W.2d
294, 296-98 (Wis. Ct. App. 1994). However, according
to our precedent, Trombetta and Youngblood do not create
two separate rules, with the former governing “appar-
ently” exculpatory evidence and the latter governing
“potentially” exculpatory evidence. We instead read
both cases to stand for the same proposition: the destruc-
tion of potentially exculpatory evidence violates the
defendant’s right to due process if (1) the State acted in

-- 10 of 16 --

No. 10-2435 11
McCarthy assumed that, like Wisconsin courts, the Seventh 3
Circuit distinguishes between “apparent” and “exculpatory”
evidence, and that our inclusion of the word “apparent” in our
three-part test is thus “mysterious.” McCarthy, however, has
misinterpreted our precedent. Compare United States v. Folami,
236 F.3d 860, 864 (7th Cir. 2001) (stating that our three-part
test derives from Trombetta), with Hubanks v. Franks, 392 F.3d
926, 931 (7th Cir. 2004) (stating that our three-part test also
derives from Youngblood). See also United States v. Kimoto, 588
F.3d 464, 475 (7th Cir. 2009) (observing that our three-part test
derives from both Trombetta and Youngblood).
bad faith; (2) the exculpatory value of the evidence
was apparent before it was destroyed; and (3) the evi-
dence was of such a nature that the petitioner was
unable to obtain comparable evidence by other rea-
sonably available means. See, e.g., Henry v. Page, 223 F.3d3
447, 481 (7th Cir. 2000) (explaining that Youngblood used
the word “potentially” to illustrate that the defendant
failed the second prong—which requires the evidence’s
exculpatory value to be apparent—of Trombetta’s test).
2. Application of Trombetta and Youngblood to this
Case
McCarthy argues that the “unreasonable application”
prong of the AEDPA requires us to accept as correct
Wisconsin’s interpretation of Trombetta and Youngblood,
leaving us with no authority to question Wisconsin’s rule
under any standard of review. While we are dubious

-- 11 of 16 --

12 No. 10-2435
In Williams v. Taylor, the Supreme Court stated, “a state-court 4
decision involves an unreasonable application of this Court’s
precedent if the state court identifies the correct governing legal rule
from this Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.” Williams v. Taylor, 529
U.S. 362, 407 (2000) (emphasis added). In accordance with
this rule, we have previously stated,
[Section 2254(d)] does not tell us to “defer” to state deci-
sions, as if the Constitution means one thing in Wisconsin
and another in Indiana. . . .
. . . Section 2254(d) requires us to give state courts’
opinions a respectful reading, and to listen carefully to their
conclusions, but when the state court addresses a legal
question, it is the law “as determined by the Supreme
Court of the United States” that prevails. . . .
. . . .
. . . The novelty [of § 2254(d)(1)] is not the “contrary to”
part but the reference to “Federal law, as determined by the
Supreme Court of the United States” (emphasis added). This
extends the principle of Teague by limiting the source of
doctrine on which a federal court may rely in addressing
the application for a writ. It does not, however, pur-
port to limit the federal courts’ independent interpretive
authority with respect to federal questions.
Lindh v. Murphy, 96 F.3d 856, 868-69 (7th Cir. 1996) (although this
decision was reversed in part on other grounds, Lindh v. Murphy,
521 U.S. 320 (1997), the portion quoted above was cited by
the Supreme Court with approval in Williams v. Taylor, 529
U.S. at 387).
of this position, we need not explore this issue be-4
cause—regardless of which rule applies—the Wisconsin
Court of Appeals reasonably concluded that the vehicle

-- 12 of 16 --

No. 10-2435 13
had no apparent exculpatory value and that the State
destroyed it in good faith.
To be considered “apparently” exculpatory, the exculpa-
tory nature of the evidence must be apparent before it
is destroyed. Youngblood, 488 U.S. at 57 n.*. Accordingly,
“[t]he possibility that [the evidence] could have ex-
culpated [the petitioner] if preserved or tested is not
enough to satisfy the standard of constitutional mate-
riality in Trombetta.” Youngblood, 488 U.S. at 57 n.*. In light
of this rule, McCarthy argues that the existence of a
statutory affirmative defense to his crime, coupled with
his purported shift from “skillful” to erratic driving,
rendered the exculpatory nature of the vehicle “apparent,”
and that the Wisconsin Court of Appeals’ conclusion to
the contrary is unreasonable. We disagree.
After being ordered out of his car, McCarthy drove
away at a high rate of speed, eventually crashing into a
police call box and driving in reverse into an intersec-
tion. Even if, as McCarthy contends, he ran into the
police call box because his brakes failed, the brake
failure would not have been apparent to the police
before the vehicle was destroyed because (1) there was no
evidence of brake failure near the police call box or any-
where else, such as brake fluid in the street; (2) total
brake failure is uncommon—a proposition defense
counsel conceded at oral argument; (3) after the police
loudly announced their presence and ordered McCarthy
to get out of his car, they had every reason to think
that McCarthy’s flight was motivated by a desire to
evade arrest for solicitation of a prostitute, and that his
subsequent crash into the call box was caused not

-- 13 of 16 --

14 No. 10-2435
by brake failure but by reckless driving; and (4) if McCar-
thy’s brakes had in fact failed prior to crashing into the
call box, it seems unlikely (i.e., not apparent) that he
would continue his flight while knowing that his brakes
were faulty. Thus, quite contrary to being apparent,
“no more can be said [about the vehicle] than that it
could have been subjected to tests, the results of which
might have exonerated the defendant.” See Youngblood,
488 U.S. at 57 n.*. We therefore cannot say that the Wis-
consin Court of Appeals unreasonably concluded that
the vehicle used in the offense did not possess an ex-
culpatory value that was apparent before it was destroyed.
In addition to being unable to prove the apparently
exculpatory nature of the vehicle, McCarthy cannot
prove that the State destroyed the vehicle in bad faith.
A finding of bad faith in these circumstances turns on
“the [government’s] knowledge of the exculpatory value
of the evidence at the time it was lost or destroyed.”
Youngblood, 488 U.S. at 57 n.*. Instead of presenting evi-
dence of the government’s knowledge, however, he
argues only that the State acted in bad faith because (1) the
crime was “vehicle-related”; (2) the prosecutor did not
adequately explain his decision to release the vehicle
while McCarthy lay in a coma; (3) the prosecution stated
in closing argument that there was no evidence of
brake failure; and (4) Wisconsin courts improperly
focused on the State’s adherence to protocol when deter-
mining that the State did not act in bad faith. Taking each
assertion as true, we cannot find that these four concerns
amount to a showing of bad faith and that the Wisconsin
Court of Appeals acted unreasonably in concluding
otherwise.

-- 14 of 16 --

No. 10-2435 15
Having been unable to prove that the exculpatory evidence 5
was apparent and that the State acted in bad faith, McCarthy
(continued...)
First, this was not a “vehicle-related” crime in the
sense that McCarthy uses this term. The underlying
crime at issue was solicitation of a prostitute. McCarthy’s
decision to flee from the scene of the crime, causing great
bodily harm to others and prompting the prosecution to
charge him under Wis. Stat. § 940.25(1)(am), does not
change the nature of his offense. Moreover, the proper
inquiry here focuses on whether the evidence—not the
crime—was of such a nature that the State had a duty
to preserve it. Second, the State has no duty to preserve
all evidence, whether apparently or potentially exculpa-
tory, while a defendant is in a coma or otherwise unavail-
able. Once again, the relevant question focuses on the
nature of the evidence and (if applicable) the State’s
decision to destroy it in bad faith; it does not focus
on the availability of the defendant. Third, when a de-
fendant presents an affirmative defense at trial, the prose-
cution is allowed to comment upon it, pointing out
any relevant weaknesses during closing arguments.
This remains true even when, as here, the defendant
wishes he could have presented more evidence to
support his affirmative defense. Fourth, it is not the
obligation of the court to address evidence that has not
been presented to it. If McCarthy desired a lengthier
bad faith analysis from the Wisconsin courts, he should
have presented more substantial evidence as to why
the State acted in bad faith.5

-- 15 of 16 --

16 No. 10-2435
(...continued)
has failed two out of three prongs in our three-part test, see
Kimoto, 588 F.3d at 475, and the test used by Wisconsin state
courts, see State v. Greenwold, 525 N.W.2d 294, 296-98 (Wis. Ct.
App. 1994).
8-24-11
Therefore, keeping in mind AEDPA standards and the
Supreme Court’s decisions in Trombetta and Youngblood,
we hold that the Wisconsin Court of Appeals rea-
sonably concluded that the State did not violate McCar-
thy’s right to due process when it destroyed the vehicle,
which possessed no apparent exculpatory value, in good
faith.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the denial of
McCarthy’s petition for writ of habeas corpus.

-- 16 of 16 --