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Moseley v. Kemper

United States District Court, E.D. Wisconsin

May 10, 2016

PAUL S. KEMPER, Respondent.



Petitioner Timothy D. Moseley seeks federal relief from his state court criminal conviction pursuant to 28 U.S.C. § 2254. He claims that his state court conviction and sentence were imposed in violation of the Constitution. For the reasons that follow, Moseley’s petition will be denied.

Moseley was charged in Milwaukee County with two counts of false imprisonment and one count of capturing an image of nudity without consent of a woman with the initials M.K. He was later charged in a separate case with eight counts of possession of a recording of nudity without consent of a woman with the initials T.H. The cases were consolidated for trial and a Milwaukee county jury convicted Moseley of all three counts involving M.K. and three of the eight involving T.H. The trial court imposed a bifurcated sentence of twelve years, the first eight in confinement. See State v. Moseley, Nos. 2011AP891-CR & 2011AP892-CR, 2012 WL 1499823 (Wis. Ct. App. May 1, 2012). Moseley is currently incarcerated at Racine Correctional Institution.

In his petition for relief under § 2254, Moseley asserts three claims. First, he alleges that the trial court erred in failing to conduct an in camera review of T.H.’s counseling records. Second, Moseley alleges that the trial court erred in denying his motion to suppress evidence. Third, he alleges that the trial court exhibited bias toward him and, therefore, denied him his right to a fair trial. This Court has jurisdiction over Moseley’s petition pursuant to 28 U.S.C. §§ 1331 and 2254.


On October 7, 2009, City of Milwaukee police officers arrested Moseley, a United States Deputy Marshal, based on allegations of domestic violence against a woman named M.K. While in custody, Moseley consented in writing to a search of his apartment and South Milwaukee police officers seized numerous items from Moseley’s apartment, including his computer, camera, external hard drive and CDs. A search of the computer revealed sexually explicit images of M.K and T.H. that formed the basis of most of the charges against him.

Moseley moved to suppress the images in question, arguing that he verbally limited his consent to the search for evidence relating to M.K.’s domestic abuse accusations. Moseley also moved for an in camera inspection of T.H.’s counseling records for evidence that she experienced memory lapses, had spoken to her therapist about Moseley allegedly sexually abusing her, and suffered from a psychological disorder at the time he recorded the images of her. The state had received T.H.’s records from the Cheyenne, Wyoming Police Department, which had received a copy from T.H.’s doctor. Wisconsin contended that Moseley had taken the pictures of T.H. in Wyoming and Cheyenne Police officers had interviewed T.H. to determine whether Moseley had committed a crime in Wyoming. During the interview, T.H. told the officers that she could not remember everything Moseley had done to her, but that she had spoken with her therapist about the acts and authorized the police to obtain her counseling records. Moseley alleged that the records would show that T.H. had a consensual sexual relationship with him in addition to revealing her memory lapses and mental illness. Charges against Moseley in Wyoming were dismissed at the preliminary hearing stage.

The circuit court held a hearing on the motions to suppress at which South Milwaukee police officers testified that Moseley, after a phone conversation with a lawyer, signed a consent form for the search of his apartment without oral or written limitations on the scope of the search. Though Moseley agrees he signed the consent form, he testifies that he verbally limited the search to his bedroom and for the items related to the domestic abuse charge. During the hearing Moseley also testified that he signed the form because he was under the impression that his interview was being electronically recorded. In fact, however, no recording now exists of the relevant part of Moseley’s interview with the police.

The trial court found the testimony of the officers more credible, that Moseley did not limit or withdraw his consent at any time, and that the lack of recording was the result of a technical error. Given those findings, the court held that the evidence was legally obtained from Moseley’s apartment and denied the motion to suppress. The trial court also denied the motion for an in camera review of T.H.’s counseling records, holding that Moseley did not need the counseling records to impeach T.H. about her memory lapses, that T.H.’s conversations about the alleged abuse were other acts unrelated to the charges of possessing the images of nudity, and that Moseley’s assertion that the treatment records have impeachment value was speculative.

On direct appeal from his conviction Moseley argued that the trial court: (1) erroneously denied his motions to suppress evidence; (2) erroneously denied his motion to conduct an in camera review of T.H.’s counseling records; and (3) exhibited bias, thereby denying Moseley his right to a fair trial. The court of appeals rejected each argument and affirmed the circuit court’s judgments of conviction. As to the search, the court of appeals found that the evidence supported the trial court’s findings that Moseley did not limit or withdraw his consent, that his decision to sign the consent form was not a result of police misconduct, and that the motion to suppress evidence was therefore properly denied. As to the counseling records, the court of appeals found that Moseley failed to satisfy the burden set forth in State v. Shiffra, 175 Wis.2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298, for an in camera inspection. Specifically, Moseley failed to explain what the counseling records would have added to the demonstrated memory lapses that was not merely cumulative. Finally, the court of appeals held that Moseley did not overcome the presumption that the trial court was impartial.

Moseley next filed a petition for review in the Wisconsin Supreme Court. In his petition for review Moseley argued that the court of appeals erred in affirming the denial of his motion for in camera inspection and in affirming the trial court’s denial of his motion to suppress, but did not assert his claim of trial court bias. The supreme court denied his petition.


A. Standard Of Review Under AEDPA

Federal review of state criminal convictions is limited to claims that the petitioner’s custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Moreover, federal review of state court convictions is “highly deferential.” A federal court may grant a state prisoner’s application for habeas corpus only when the state-court proceeding “resulted in 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, ” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” § 2254(d)(2). This is, and was meant to be, a difficult standard to meet. Harrington v. Richter, 562 U.S. 86, 102 (2011). Though AEDPA stops short of completely barring federal court relitigation of claims already rejected by state courts, it only “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Id. In order to obtain federal review of his federal claims, a state prisoner must first exhaust his state court remedies and provide the state courts a full and fair opportunity to correct any error. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

B. In Camera Review of Medical Records

Pennsylvania v. Ritchie established the constitutional standard for determining when due process entitles a criminal defendant to an in camera review and disclosure of otherwise privileged records. 480 U.S. 39 (1987). Ritchie confirmed that defendants are not constitutionally entitled to disclosure of privileged records just because they might contain relevant information. At the same time, the Court recognized that the strong public interest in protecting sensitive information such as the counseling or mental health records of complaining witnesses does not necessarily prevent disclosure in all circumstances. Ritchie held that the need to balance “the rights of the defendant in ensuring a fair trial and the needs of the State or the individual to keep those records private, ” could be met by an in camera review of the records by the trial court. Id. at 60; Rizzo v. Smith, 528 F.3d 501, 506 (7th Cir. 2008). If the trial court determines that the records contain material and exculpatory information, due process requires that the information be disclosed to the defense. Ritchie, 480 U.S. at 58-59.

However, Ritchie stopped short of holding that the mere possibility that the records contained exculpatory information was sufficient to require the trial court to search through the confidential records. The Court addressed the burden that a defendant must meet in order to obtain an in camera review of privileged records in a footnote:

The Commonwealth also argues that Ritchie is not entitled to disclosure because he did not make a particularized showing of what information he was seeking or how it would be material. See Brief for Petitioner 18 (quoting United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976) (“The mere possibility that an item of undisclosed information might have helped the defense ... does not establish ‘materiality’ in the constitutional sense”)). Ritchie, of course, may not require the trial court to search through the CYS file without first establishing that it contains material evidence. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) (“He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense”). Although the obligation to disclose exculpatory material does not depend on the presence of a specific request, we note that the degree of ...

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