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Giacomantonio v. Meisner

United States District Court, E.D. Wisconsin

August 27, 2019



          Nancy Joseph United States Magistrate Judge

         Giancarlo Giacomantonio, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Giacomantonio was convicted of sexual exploitation of a child and sentenced to eight years, consisting of five years of initial confinement followed by three years of extended supervision. Giacomantonio alleges that his conviction and sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.


         Giacomantonio challenges his judgment of conviction for sexual exploitation of a child in Milwaukee County Circuit Court. (Answer to Habeas Petition (“Answer”), Ex. 1, Docket #8-1 at 1-2.) The charges arose from conduct occurring between Giacomantonio and his step-daughter between November 2, 2012 and September 6, 2013 when the stepdaughter was between the ages of fifteen and sixteen years old. (State v. Giacomantonio, Appeal No. 2015AP968 (Wis. Ct. App. July 12, 2016), Answer, Ex. 5, Docket # 8-5 at 2.) The victim's mother suspected that her husband, Giacomantonio, had been sexually abusing her daughter, who had attempted suicide in December 2012. (Id. at 3.) During this period Giacomantonio and the victim's mother were undergoing a marital separation and were staying in separate rooms in the home. (Id. at 3 n.3.) After the suicide attempt, the victim underwent psychiatric and psychological counseling. (Id. at 3.) On September 6, 2013, the victim's mother found some “alarming texts” on her daughter's cellphone and took the phone to the police. (Id.) Her mother had access to the phone's contents because the phone did not have a lock. (Id.)

         A detective searched the victim's phone at the police station and located texts from Giacomantonio's cellphone to the victim's cellphone saying “I want my booty” and “I want my boty.” (Id.) At trial, the victim identified one phone No. belonging to Giacomantonio's cellphone and the other phone No. as belonging to her phone. (Id. at 4.) Giacomantonio sent his step-daughter a text asking her to “come to my room, ” stating that he “want[ed] [his] booty today, ” and that he had plans for the victim and her girlfriend. (Id.) The victim testified that Giacomantonio would often text her “to go to his room late at night” and sent her text messages all the time about her “booty.” (Id. at 5.) She testified that if she refused to provide Giacomantonio with photographs of her bare buttocks and vagina, which he referred to as her “booty” or “boty, ” he would withhold affection and prevent her from seeing her friends. (Id.) However, if she complied with his demands, he would be more supportive, more lenient, and would supply her and her friends with alcohol. (Id.)

         Pretrial, Giacomantonio moved for an in camera review of the victim's mental health records. (Id.) Giacomantonio argued that her mental health records were likely to show whether she was being truthful about her relationship with Giacomantonio. (Id.) He further argued that if his step-daughter had discussed Giacomantonio's crime, the therapist would have been required, by law, to disclose that information pursuant to Wisconsin's mandatory reporting law. (Id. at 5-6.) The trial court denied Giacomantonio's motion, finding that the victim's mental health records would be cumulative. (Id. at 6.) The trial court found that Giacomantonio could pursue the facts by “other avenues, ” including his independent knowledge of his step-daughter's suicide attempts and her relationship with another minor that the victim's mother felt was inappropriate and that she had allegedly been untruthful about. (Id.) Giacomantonio argued that without the in camera review, he was unable to dispute the victim's claim that she attempted suicide because of him and her claim that she felt controlled and manipulated by him such that he was able to induce her to illicit sexual behavior. (Id.)

         On appeal, Giacomantonio again argued that his right to present a defense was infringed upon when the trial court refused to conduct an in camera review of his stepdaughter's treatment records. (Id.) The court of appeals rejected this argument. Applying State v. Shiffra, 175 Wis.2d 600, 499 N.W.22 719 (Ct. App. 1993) and State v. Green, 2002 WI 68, 253 Wis.2d 356, 646 N.W.2d 298, the court of appeals found that Giacomantonio failed to make a preliminary showing that the records were material to the defense. (Id. at 17.) The Wisconsin Supreme Court denied Giacomantonio's petition for review on January 9, 2017. (Answer, Ex. 8, Docket # 8-8.) Giacomantonio filed a timely petition for writ of habeas corpus in this court on May 16, 2017. (Docket # 1.)


         Giacomantonio's petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) 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 (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)(2).

         A state court's decision is “contrary to . . . clearly established Federal law as established by the United States Supreme Court” if it is “substantially different from relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the “contrary to” clause:

[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

         To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the “unreasonableness” standard, a state court's decision will stand “if it is one of several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained:

Unreasonableness is judged by an objective standard, and under the “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law ...

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