Scott R. Schmidt v. DEBORAH MCC ULLOCH , Director, Sand Ridge Secure Treatment Center

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3651
S COTT R. S CHMIDT,
Petitioner-Appellant,
v.
DEBORAH M CC ULLOCH , Director, Sand Ridge Secure
Treatment Center,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:14-CV-00287-BBC — Barbara B. Crabb, Judge.
____________________
A RGUED F EBRUARY 16, 2016 — DECIDED M AY 26, 2016
____________________
Before POSNER , WILLIAMS, and H AMILTON , Circuit Judges.
POSNER , Circuit Judge. In 1990 the petitioner, Scott
Schmidt, then 27 years old, was convicted in a Wisconsin
state court of raping a woman multiple times, burglarizing
her apartment, falsely imprisoning her, and intimidating her
as a witness. He was sentenced to prison and paroled in
2003, but his parole was revoked five years later as a result
of his having, in violation of its terms, viewed sexually ex-

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2 No. 14-3651
plicit materials on the Internet and been expelled from a
treatment program for sexually violent persons.
He was sent back to prison for another year and a half,
and as his sentence was drawing to an end the state had him
tried civilly on the ground that he was a sexually violent
person as a consequence of mental disorder. The jury found
him to be so and, as authorized by Wis. Stat. § 980.06, he was
committed for an indefinite period to the Sand Ridge Secure
Treatment Center, and there he remains. Sand Ridge detains
persons who have a history of sexual aggression, and by de-
taining them shuts off their access to potential victims. It also
provides treatment for the detainees, designed to provide
them with a “safer return to the community”—safer in the
sense that they will be less likely to commit sex crimes than
they had been. In “Sand Ridge Secure Treatment Center—
Mission Statement,” www.dhs.wisconsin.gov/sandridge/mis
sion-vision.htm (visited May 23, 2016, as were the other
websites cited in this opinion), we read that
The FIRST mission of Sand Ridge is to enhance public
safety, which is accomplished by:
• Researching the causes and treatment of sexual vio-
lence.
• Assessing individuals for commitment purposes under
the State’s Sexually Violent Persons Law.
• Treating and teaching patients and others with the goal
of providing a safer return to the community for indi-
viduals with a history of sexual aggression.
• Exercising custody and control over individuals in a
manner that reduces the opportunities for sexually vio-
lent re-offending.

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No. 14-3651 3
In 2014, having appealed the order of civil commitment
unsuccessfully in the Wisconsin state court system, Schmidt
sought federal habeas corpus. He claimed that his civil trial
had violated his constitutional right to due process of law by
presenting the jury with evidence of his past sexual miscon-
duct the prejudicial effect of which outweighed its probative
value. The district court dismissed the petition on the
ground that Schmidt had failed to exhaust his remedies in
the state judicial system, as required by 28 U.S.C.
§ 2254(b)(2), by presenting his federal due process claim in
the state court.
He had invoked the exception to the requirement of ex-
haustion of federal claims for cases in which there has been a
“fundamental miscarriage of justice.” Steward v. Gilmore, 80
F.3d 1205, 1212 (7th Cir. 1996). That exception, however, “re-
quires a claim that the defendant be actually innocent of the
crime for which he or she is imprisoned,” id., and Schmidt is
not claiming to have been innocent of the crimes for which
he was imprisoned back in 1990. His claim is that there was
no basis for his civil commitment in 2010—that he wasn’t too
dangerous then to be given his freedom. That is a parallel
claim to the conventional “actual innocence” excuse for pro-
cedural default, and close enough that we can assume that
the excuse applies in the civil commitment context.
But the appeal argues not innocence, but that ineffective
assistance of counsel, consisting of the lawyer’s failure in the
state civil proceeding to present a due process claim, excuses
his forfeiture of that claim; the lawyer could have but failed
to argue that the admission of evidence the prejudicial effect
of which exceeded its probative value violates the due pro-
cess clause. See, e.g., Richardson v. Lemke, 745 F.3d 258, 275–

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4 No. 14-3651
76 (7th Cir. 2014). We’ll proceed directly to the merits of the
due process claim, because if it lacks merit he was not hurt
by having forfeited it. See Brown v. Watters, 599 F.3d 602,
609–10 (7th Cir. 2010).
The due process issue is not whether Schmidt’s treatment
at Sand Ridge has equipped him to return to society; it is
whether the jury’s verdict in 2010 that he should be commit-
ted to Sand Ridge and remain there till it’s safe to give him
freedom should be invalidated on the ground that the trial
which culminated in that verdict denied him due process of
law. The claim is based primarily on the introduction at trial
of statements, which he thinks his lawyer should have ob-
jected to vigorously, that Schmidt had made in the mid-
1990s while he was in prison for his sexual aggression and
undergoing sex-offender treatment there. A psychologist
who testified as an expert witness for the state, and the de-
fendant’s parole officer, read portions of these statements to
the jury. The statements describe in detail the sexual vio-
lence that he had committed before he was arrested and im-
prisoned. We quote the portions read at trial, minus ques-
tions by the lawyer directing the witnesses to specific para-
graphs in the original statements:
I will ask my victims if they ever had an orgasm. To
kiss me, touch my penis and/or tell me to speed up or slow
down. I feel a sense of relief if I ejaculated. I will untie the
victim’s hands as a phoney [sic] act of caring thinking I’ve
done enough and I wonder if she will tell. I will look
around her apartment for a purse or checkbook to steal
hoping she fears I know her name, address and phone
number therefore she’ll be too scared to report me. I will
threaten to hurt her or her family if she does. …

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No. 14-3651 5
I expect my victims to enjoy being raped, to be submis-
sive, to tell me how great I am and invite me back over af-
ter I rape them. I commit rape to feel powerful, superior,
and in control. To degrade and humiliate my victims. To
get even for all the perceived wrongs inflicted on me. For
what I perceive, as teasing me and/or rejecting me. I tell
myself females are property and sex objects for my own
sexual gratification. …
Watching [her] remove her tops, I smile to myself. Lick
my lips in anticipation and swallow hard. I feel aroused,
controlling, powerful, and superior. I see a faint look of
disgust on Brenda’s face. I think, that’s right, bitch, you’re
here for my pleasure now. You’re getting what you de-
serve, my penis. I’m the boss now, you’ll do as I say, and
you don’t want me to get pissed and start beating you,
pulling your hair, and slapping you. …
Brenda kicks me hard in the chest then runs for the
door. I fell off the back of her bed. Feeling angry I think, I
got to get this bitch, and if she gets to the street, I’m
screwed. Then I hear Brenda scream. I get up quickly and
violently grab Brenda’s throat. Clutching it very tightly
and crushingly cutting off her air supply. Feeling nervous I
think, someone will hear her scream and rescue her and I
got to shut her up. With Brenda holding onto the screen
door as tight [as] she can, I grabbed her arm forcibly and
pull until she let[]s go. Then I drag her by her arm and
throw her brutally back on the bed. Realizing Brenda was
willing to run out of her apartment naked to escape I
think, she’s not good enough to get away from me. I feel
powerful, controlling, superior and unique. …
Also, on one of my furloughs home, I burglarized a
house in Elkhorn, Wisconsin. I went into a daughter’s bed-
room, took out a pair of her underwear, and laid them on
her bed. Then I pulled my pants down and rubbed against

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6 No. 14-3651
them until I ejaculated in them. I left them there, then left
the house after stealing some money and a motorcycle. …
At age fourteen I was given weekend furloughs to go
home. One or two visits went fine. Nothing really changed
at home. My stepfather was still very mean. On my third
furlough I ran away and attempted to rape a fourteen-
year-old girl. I grabbed her by some woods, tripped her,
and shoved my hands under her clothes. She fought me off
and persuaded me to let her go. I did release her with a
demand she meet me later that night. She never did meet
me. I followed her home, then later that night, entered her
house unannounced. Her mother was asleep on the couch.
I startled her and she told me to leave. The next day, I
went in a garage. A woman in the house walked her chil-
dren to the bus stop, then returned. I knocked on her door,
asked to use her phone, and showed her a knife that I pre-
viously found in a tackle box in the garage. She screamed
and shut the front door—excuse me, she screamed and
slammed the door shut. I ran off and threw the knife away.
She never reported me. A day later I was caught stealing a
motorcycle and attempting to break in a clothing store at
Marantha Baptist Bible College. I returned to Ethan Allen
School for Boys. …
Five female victims, ages 14 years old to 42 years old.
Friends, neighbors and strangers. I vaginally and/or orally
rape them. I use my hands, mouth and/or penis. I feel out
of control, rejected, jealous and revengeful because of mar-
ital problems. I rape to get my control back and get my re-
venge on my wife. …
Three weeks before raping Brenda I watched her walk
into her apartment from the store parking lot from across
the street. I rape fantasized about her for three weeks prior
to brutally raping her. I go to her apartment at 8:00 PM on
April 9, 1990. I lied to her and asked to use her phone so I
could call a friend who lived in the same apartment com-

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No. 14-3651 7
plex as she did. I b[r]ought a knife and change of clothes to
wear that night, put the knife in my back pocket before go-
ing into Brenda’s apartment. I went there to violently rape
her. Brenda was alone and trusted me to make a phone call
and leave. While in her apartment I faked a phone call and
attacked her on the bed. I raped her orally with my mouth
and penis, vaginally with my mouth, penis and fingers
and cruelly rubbed her breasts. I tied Brenda’s hands up
when she tried to escape and viciously grabbed her throat
and choked her—and choked her when she would scream.
I terrified her by intimidating her and threatening her with
a knife. The rape lasted about ninety minutes. About three
weeks later I was arrested after calling Brenda’s apartment.
Despite the focus in this statement on his 1990 rape of
Brenda, Schmidt had had an extensive prior history of sex
crimes and sexual misconduct, as the state’s expert witness
in the civil commitment trial explained to the jury:
He kissed the mother of one of the male residents that
he was a counselor for at the Carmelite Home for Boys. He
made inappropriate sexual advances to the sister of one of
the residents where Mr. Schmidt was the counselor. At the
Lad Lake Home for Boys he had indicated to a [D]octor
Gleason there that he raped one of the sisters of one of the
male residents for whom he was acting as a counselor. He
had a job as a freezer stocker but was terminated for mak-
ing inappropri[a]te sexual advances toward a female driv-
er. …
At age twelve he … burglariz[ed] a house and ob-
tain[ed] the underwear of a young woman who lived there
and masturbate[ed] to ejaculation with those undergar-
ments. He then was placed in an East Troy foster home,
this didn’t work out well. He had inappropriate sexual
contact with the daughter there of the foster home parents
and he stole their snowmobile. His social worker decided

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8 No. 14-3651
that this was serious enough to place him at the Boy’s
School at Wales for these behaviors.
It was also indicated in a police investigation that Mr.
Schmidt had been photographed in 1987 by the White-
water police department, approached approximately seven
young women and asked them to pose for photographs.
And even when he was in jail he apparently gave a note to
a female cook saying that he [would like to] start a rela-
tionship with her and get to know her better even while in
jail. These are the things that had been reported here.
During the course of treatment Mr. Schmidt has also
reported a number of other issues having to do with his
sexuality … . [H]e revealed that he had engaged in un-
wanted—we call it frottage, it’s a French term, it means
rubbing against people that are unsuspecting for purposes
of sexual gratification. … Mr. Schmidt had said that he had
engaged in that here in Wisconsin ten times with female
victims between the ages of ten and twenty-seven. He re-
ported fondling their breasts, buttocks and vaginas with
his hands and without consent. He also reported that he
had raped five females between the ages of fourteen and
forty-two who were friends, neighbors and strangers.
These assaults never came to the attention of the authori-
ties for one reason or another that I’m not privy to. During
the course of these rapes he reported vaginally and orally
raping the women by forcing penis to vagina intercourse
or him performing oral sex on the victim. He also disclosed
that he had engaged in voyeurism, window peeping, with
twenty to thirty victims between the ages of sixteen and
forty-two sometimes looking with binoculars through their
windows, watching them undress and things of that na-
ture. And he also said that he involved himself in exhibi-
tionism with four females in the same age group and that
he would either be completely naked or wearing light col-

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No. 14-3651 9
ored shorts with no underwear so the victims could see his
penis.
Schmidt no more denies the truth of this narrative than of
his first-person statements, but argues merely that the preju-
dicial character of the first-person statements outweighed
their truth value. That’s a strange argument. The confession
was the petitioner’s voluntary statement, a classic admission
against interest, which is why he could not and did not chal-
lenge its admission on hearsay grounds; nor is there any
suggestion that it was coerced. It is the candid, unembar-
rassed—in fact proud and self-congratulatory—self-portrait
of a sexual maniac, told in the first person, with no hint of
guilt or remorse.
It’s true that his confessions predated his civil commit-
ment trial by about 15 years and the events recounted in
them were at least 20 years old. His fixation on rape and
other violence against women may have diminished by the
time the trial was held. But he was free to submit evidence of
this and attempted to do so. The attempt failed. The two
psychologists who testified on his behalf have played so lim-
ited a role in the appeal that their names appear nowhere in
the appellant’s summary of their evidence. We’re told only
that “both experts scored Schmidt a three [on STATIC-99 or
99-R] and testified that they could not conclude that Schmidt
was more likely than not to reoffend.” STATIC-99 and 99-R
categorize sex offenders on the basis of characteristics such
as number of past convictions and type of victim, and report
a rate of re-arrest or re-conviction for offenders in each cate-
gory. One of Schmidt’s experts inferred from these materials
a 6 to 23 percent probability that Schmidt would commit an-
other sex crime within 10 years (the expert thought the high-

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10 No. 14-3651
er estimate more accurate) were he to be released now, and
his other expert predicted a 24 percent probability. One testi-
fied that older offenders are less likely to re-offend and also
that “successful completion of treatment certainly makes an
individual less likely to reoffend.” But the statistics are
alarming.
The government’s expert psychological witness, Dr.
Christopher Snyder, predicted a re-offense probability of 45
percent within 10 years and 52 percent within 15 years—and
added that those numbers were underestimates because
many sex offenses are never detected. He acknowledged
however that the numbers did not take into account an indi-
vidual psychological assessment of Schmidt. And he did not
explicitly address the relevance of Schmidt’s statements to
his likelihood of re-offense. But he offered the jury the fol-
lowing assessment of the likelihood that if released from
confinement Schmidt would reoffend:
Mr. Schmidt has what I would describe as a mixed
paraphilic disorder. He has elements of a number of differ-
ent specific paraphilias but when you put them all together
it clearly rises to the level in my opinion of a paraphilic
disorder. He has admitted to the inappropriate touching of
people, bumping up against them and so forth. He has
admitted to engaging in voyeurism, exhibitionism, having
rape fantasies, having carried out several rapes, at least six
that we’re aware of. … [T]hese type[s] of paraphilic disor-
ders, specifically the fantasies about rape predispose him
to committing those kinds of acts in the future. … Antiso-
cial personality disorders, like the personality disorders,
involve a long-term ingrained pattern of behavior that con-
flicts with society, that causes difficulty in functioning, and
in Mr. Schmidt’s case antisocial personality disorder de-
scribes the type of personality disorder that he exhibits. …

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No. 14-3651 11
But it’s clear that Mr. Schmidt has these paraphilic urges
and behaviors that we’ve discussed and he has the person-
ality disorder which involves a lack of empathy, a lack of
regard for the rights and prerogatives of other people. And
a combination of these kinds of things together in my opin-
ion predisposes him to do these type of acts.
Dr. Snyder also testified that “psychopathy is a more
dangerous form of antisocial personality disorder” and that
Schmidt has “a very high degree of psychopathic traits,” a
list that includes, he explained, “pathological lying, grandi-
ose sense of self-worth, superficial charm, conning and ma-
nipulative, lack of remorse or guilt, promiscuous sexual be-
havior, early behavior problem, impulsivity, failure to accept
responsibility, juvenile delinquency.” He testified that peo-
ple having such traits “tend to be extremely violent and they
tend to recidivate much more rapidly” than offenders who
do not have them. And “when the individual has sexual de-
viance and a high level of psychopathy … the research litera-
ture has identified this group of individuals who have these
two distinct and separate problems as being in the highest
group to commit new sexual offenses of any group we have
yet been able to identify. … The actuarial instruments [such
as STATIC 99] do not directly address this unfortunate com-
bination. … [I]f I had an individual who had completed the
[sex-offender treatment] program and then was actively fan-
tasizing about raping the female staff members there and re-
vealed that and was also revealing that information to a spe-
cific female staff member I would feel that … the offender
needed a lot more work before they would be seen as having
profited from treatment. … Research literature with psycho-
pathic sex offenders and conventional sex offender treatment
programs such as the program [the petitioner] was involved

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12 No. 14-3651
in is very unclear [as to whether] psychopathic offenders
profit at all from” such programs.
Dr. Snyder’s skepticism was limited to the efficacy of at-
tempts to cure psychopathic sex offenders. Concerning sex of-
fenders more generally, the Justice Department—which one
would not expect to downplay the difficulties of curing such
offenders—notes that “findings from single studies of sex
offender treatment conducted within the past 10 years re-
main somewhat inconsistent, but the weight of the evidence
from more rigorous studies suggests that treatment—
particularly cognitive behavioral approaches—can have a
positive effect. … While there is agreement among research-
ers that the knowledge base is far from complete, the evi-
dence suggests that certain therapeutic interventions for sex
offenders can and do work. Specifically, cognitive-
behavioral/relapse prevention approaches have been identi-
fied as being effective at reducing both sexual and nonsexual
recidivism.” Roger Przybylski, Office of Justice Programs,
Office of Sex Offender Sentencing, Monitoring, Apprehend-
ing, Registering, and Tracking, Sex Offender Management As-
sessment and Planning Initiative, Chapter 7: Effectiveness of
Treatment for Adult Sex Offenders, Summary of Research
Findings, www.smart.gov/SOMAPI/sec1/ch7_treatment.
html.
Given the uncertainties regarding the efficacy of treat-
ment of psychopathic sex offenders, Dr. Snyder may be right
or wrong concerning the defendant’s prospects for being
cured, but he was a qualified expert witness and we do not
understand Schmidt to be arguing that a reasonable jury
could not have believed Snyder’s testimony. The first-person
statements that Schmidt challenges illustrate the psycho-

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No. 14-3651 13
pathic traits that Snyder described, so they were pertinent to
the jury’s evaluation of whether Schmidt’s predisposition to
commit sexual offenses had changed in the preceding twen-
ty years and whether the sex-offender treatment that he had
undergone was likely to have reduced his risk of re-offense.
And since Schmidt did not testify, the jury wasn’t given a
current view of his perspective on his behavior. And finally
even studies that have found positive effects of sex-offender
treatment acknowledge that a significant number of the
treated offenders re-offend. See id. The uncertainty is espe-
cially great with respect to offenders who have mental dis-
orders similar to Schmidt’s. See Dennis M. Doren and Pame-
la M. Yates, “Effectiveness of Sex Offender Treatment for
Psychopathic Sexual Offenders,” 52 International J. Offender
Therapy & Comparative Criminology 234, 243 (2008).
The essential point, however, given the focus of
Schmidt’s appeal, is that his constitutional rights were not
infringed by the presentation at his civil commitment trial of
the detailed first-person accounts of his sex crimes. The
judgment of the district court is therefore
AFFIRMED.

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14 No. 14-3651
HAMILTON , Circuit Judge, concurring in the judgment. I
agree we should affirm the judgment dismissing Schmidt’s
petition for a writ of habeas corpus. I reach that conclusion by
a different route addressing the procedural and substantive
requirements for federal habeas corpus relief.
Schmidt’s core constitutional claim is that he was denied a
fair trial when the state’s witnesses were allowed to read from
Schmidt’s own graphic accounts of his prior violent sex crimes
against women. Schmidt had provided those accounts in the
course of his treatment programs in state prison. He argues
that reading the detailed, graphic, and emotionally powerful
accounts to the jury denied him a fair trial because the evi-
dence had so little probative value and was unfairly prejudi-
cial to him. See generally Payne v. Tennessee, 501 U.S. 808, 825
(1991) (allowing victim impact evidence in penalty phase of
capital case); Darden v. Wainwright, 477 U.S. 168, 179–83 (1986)
(closing argument in capital case did not deny due process of
law).
The district court dismissed Schmidt’s petition based on
procedural default, finding that he had not fairly presented
his federal constitutional claim to the state courts. His counsel
did not object at trial to this evidence. In his state court appeal,
his counsel argued under state law that the trial was unfair
and that a new trial would be in the interests of justice.
The question I believe we must first address is whether
that argument “fairly presented” Schmidt’s federal claim to
the state courts under the rules of law that apply to federal
habeas corpus petitions. See 28 U.S.C. § 2254(b)(1); Baldwin v.
Reese, 51 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365
(1995).

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No. 14-3651 15
As we have explained in several cases, including Ellsworth
v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001), presenting a
state-law claim can sometimes suffice to present a parallel
federal claim. Whether a particular presentation was suffi-
cient depends on four factors: whether the petitioner (a) relied
on federal cases that engaged in constitutional analysis; (b) re-
lied on state cases that apply a constitutional analysis to sim-
ilar facts; (c) framed the claim in terms so particular as to call
to mind a specific constitutional right; and (d) alleged a pat-
tern of facts that is well within the mainstream of constitu-
tional litigation. The presence of any one of these factors, es-
pecially (a) and (b), is not necessarily enough to avoid default.
Instead, the court must try to make a practical, case-specific
judgment about whether the state court had a fair oppor-
tunity to consider the federal-law claim. Kurzawa v. Jordan, 146
F.3d 435, 441–42 (7th Cir. 1998); see also Ellsworth, 248 F.3d at
639 (three factors showed fair presentment of federal-law is-
sue).
The last two of the four factors from Ellsworth apply to
Schmidt’s argument that admission of the graphic details of
his confessions denied him a fair trial. It should have called to
mind the federal constitutional right to a fair trial, and his
claim that he was unfairly prejudiced by admission of such
graphic evidence with little probative value was the sort of
factual account that fits comfortably within the mainstream of
federal due process litigation.
The state court of appeals said that Schmidt argued that
“such evidence had low probative value and was substan-
tially outweighed by its prejudicial effect,” citing Wisconsin’s
counterpart to Federal Rule of Evidence 403, Wis. Stat.
§ 904.03. The state court also declined to address the case, as

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16 No. 14-3651
the state had argued it should, in terms of whether Schmidt’s
trial lawyer failed to provide effective assistance of counsel
under the Sixth Amendment by failing to object to the evi-
dence at trial. Instead, the state appellate court addressed the
merits of Schmidt’s claim that the probative value of the evi-
dence was substantially outweighed by its prejudicial effect.
See Supp. App. 521 n.3.
It is not clear to me that our approach to fair presentment
in the Ellsworth and Kurzawa line of cases would survive Su-
preme Court scrutiny under Baldwin v. Reese and Duncan v.
Henry, for example, but I do not think we need to reach a firm
conclusion on that issue, which is beyond the scope of the par-
ties’ briefs. The state should prevail on the merits.
The state court applied to Schmidt’s case a standard more
generous than would apply to the federal due process claim.
In other words, he could not prevail on his federal due process
claim without also satisfying the state-law standard for an un-
fair trial. The state appellate court considered and rejected the
latter, implying rejection of the former.
Thus, even if Schmidt could overcome the fair-present-
ment problem and any other procedural obstacles, he would
still not be entitled to federal habeas relief. On the merits, the
state court’s rejection of that (implicit) federal claim was not
“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). The standard that was applied
in Payne and Darden requires a court to do the difficult job of
weighing probative value against unfair prejudice from the
evidence. Schmidt cannot show that the state appellate court’s
affirmance of his commitment was an unreasonable applica-
tion of that standard. As the majority opinion explains, the

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No. 14-3651 17
evidence of Schmidt’s own accounts of his past violent sexual
assaults remained relevant in assessing the risk of future as-
saults and the conflicting evidence about the effectiveness of
the treatment he had received in custody. Reasonable judges
could find that powerful evidence was admissible, despite the
risk that it would have unfair emotional impact.
Schmidt has argued for de novo review rather than the
deferential review under § 2254(d)(1) because the state appel-
late court did not directly address the merits of the federal
constitutional claim. The argument comes with a strong dose
of irony, of course. Schmidt never raised the federal constitu-
tional claim, at least explicitly, so it’s no surprise that the state
court did not address it explicitly.
The argument is creative, but it would be strange to say
that a petitioner can avoid deferential review of state court
decisions under § 2254 by presenting his federal claims only
implicitly (but well enough for “fair presentment” under the
Ellsworth line of cases), and then arguing the state courts
failed to decide the federal issue on the merits. That approach
would undermine § 2254(d), which makes clear that federal
habeas corpus relief is “not a substitute for ordinary error cor-
rection through appeal” but is instead a “guard against ex-
treme malfunctions in the state criminal justice systems,” in
cases where the state court’s error is “beyond any possibility
of fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 102–03 (2011).
I would apply the Richter standard to say the state court’s
implicit rejection of the implicit federal constitutional claim
was on the merits here, within the meaning of § 2254(d)(1).
Applying the deferential standard of § 2254(d)(1), the denial

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18 No. 14-3651
of relief to Schmidt did not involve an unreasonable applica-
tion of clearly established federal law, as determined by the
Supreme Court of the United States. Accordingly, Schmidt is
not entitled to federal habeas relief.

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