                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-2227
MARVIN SIMELTON,
                                        Petitioner-Appellant,
                              v.

MATTHEW J. FRANK,
                                        Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
      No. 03 C 145—Patricia J. Gorence, Magistrate Judge.
                        ____________
     ARGUED DECEMBER 8, 2005—DECIDED MAY 1, 2006
                   ____________


  Before BAUER, POSNER, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. Marvin Simelton pled guilty to
two charges of sexual assault. After unsuccessfully pursuing
his state court remedies, he filed a petition for a
writ of habeas corpus in the district court pursuant to
28 U.S.C. § 2254. In a thorough opinion, the magistrate
judge denied the writ. Simelton presents us with a single
issue for review: whether his guilty plea was entered into
knowingly, intelligently and voluntarily. We affirm.


                       I. HISTORY
  Simelton was initially charged by the State of Wiscon-
sin with one count of kidnaping and three counts of sexual
2                                                No. 05-2227

assault after he pushed a woman into an alley and sexually
assaulted her in January 1999. Included in the initial
charges was a penalty enhancer for habitual criminality. A
plea deal was negotiated where the penalty enhancer, the
kidnaping charge, and one charge of sexual assault were to
be dismissed in exchange for Simelton’s plea of guilty to two
charges of sexual assault.
  A hearing was held in the Milwaukee County Circuit
Court in April 1999 where Simelton was to plead guilty.
Prior to coming out of the “bullpen” (where prisoners are
held while awaiting a court appearance), Simelton appar-
ently had cold feet and indicated to his counsel that he
wanted a new lawyer to take a fresh look at his plea deal.
But he again changed his mind after coming into court
and indicated that he wanted to proceed. The judge in-
quired into the issue, and Simelton told the judge, referring
to his attorney, “I’d like to keep her on my case.” To be sure,
the judge asked some follow-up questions and passed the
case to give Simelton more time to think and talk it over
with his lawyer.
  When the case was called again, Simelton was ready
to keep his lawyer and go forward with the plea. The type
of plea immediately became an issue, because Simelton
indicated that he wanted to take an “Alford plea,” which
allows the defendant to plead guilty while maintaining his
innocence. See North Carolina v. Alford, 400 U.S. 25 (1970).
His attorney quickly corrected him though by reminding
him that the issue of an Alford plea had been discussed
with the prosecutor who had been clear that such a plea
would not suffice. After this exchange, Simelton, responding
to his attorney’s questions, confirmed his desire to enter a
guilty plea—as opposed to an Alford plea—and that he did
not want another attorney to review his case.
  After comments by the prosecutor, the judge began
questioning Simelton. The judge first solicited some back-
ground, including asking Simelton whether he had “a high
No. 05-2227                                                 3

school education plus two years beyond high school,” to
which Simelton responded, “Yes.” As the Wisconsin Court
of Appeals later explained, the two years beyond high school
referenced by the judge were classes in plumbing and
custodial work taken in prison, and, according to Simelton,
he never really graduated from high school.
   The judge moved on to reviewing the constitutional rights
Simelton would be giving up by pleading guilty, and queried
the voluntariness of his decision. The judge then asked
Simelton about the two counts of sexual assault to which he
was pleading guilty. Specifically, as to the elements of the
first count, the colloquy was as follows:
      THE COURT: And do you understand that the
    State would have to prove at trial that on that date
    and at that location you did have sexual inter-
    course, penis to mouth, with [the victim], without
    her consent by threat of force; do you understand
    that?
      THE DEFENDANT: Yes.
     THE COURT: Do you have any question about
    what that crime is?
      THE DEFENDANT: Yes, ma’am.
      THE COURT: Pardon me?
      THE DEFENDANT: Yes, I understand.
     THE COURT: Okay. You understand the ele-
    ments of the offense?
      THE DEFENDANT: Yes, ma’am.
The discussion was similar as to the second count of sexual
assault to which Simelton was pleading guilty:
      THE COURT: And you understand that the State
    would also have to prove that on that date and at
    that location, you did have sexual intercourse, penis
    to vagina, with [the victim] without her consent by
4                                                     No. 05-2227

    threat or force—threat of force or violence; do you
    understand that?
      THE DEFENDANT: Yes, ma’am.
The judge then discussed the possible sentences with
Simelton, making sure he understood that the prosecutor
would recommend “substantial” prison time, and that it was
possible he would be sentenced to the maximum sentences
for each count, which “could run one after another . . . so it
could be a total of forty years.” The hearing concluded with
the judge accepting Simelton’s plea of guilty to the two
counts of sexual assault.
   In May 1999, Simelton was sentenced. During the hearing
Simelton requested certain clarifications to his presentence
report. He disputed that he received any gratification from
the sexual assaults he pled guilty to, and also attempted to
explain in more detail his culpability for two of his previous
convictions. As to a previous battery conviction, he provided
reasons for why he had become involved in an altercation
with a security guard. And with regard to a previous
conviction for reckless homicide, Simelton wanted the judge
to know that the victim was only stabbed as a result of a
struggle where Simelton and the victim rolled over on the
floor and that Simelton “did not actually stab the victim.”1
   Simelton also attempted to minimize his culpability for
the sexual assault. He apologized for “any harm” to the
victim and said that he “made a bad decision on that day.”
Simelton also (contradicting his plea) refused to admit guilt:
“I’m not saying that—that I’m in the wrong.” He summed
up his thoughts on the incident as follows:
      When I met [the victim], she stopped me, and
    then I made a bad judgment . . . we end up doing


1
  In response to this last clarification, the judge astutely queried:
“Did [the victim] roll over on the knife four times?”
No. 05-2227                                                 5

    something both had no business doing, so I paid the
    consequences of it with my action, and I hope the
    Court can forgive me, and I feel very, very sorry for
    whatever happened, and I hate to see that a person
    have to go through—go through this type of trauma
    ....
In considering Simelton’s criminal background, which
included previous convictions for fourth degree sexual
assault and aforementioned retail theft, battery, and first
degree reckless homicide convictions, the judge noted
that Simelton consistently attempted to posit incredible
explanations for his criminal conduct. Reaching the conclu-
sion that a substantial prison sentence was necessary, the
judge sentenced Simelton to two terms of fifteen years’
imprisonment, to run consecutively.
  Simelton requested review in the Wisconsin Court of
Appeals, but his attorney, seeing no merit in the appeal,
opted to file an Anders brief. See Anders v. California, 386
U.S. 738 (1967). Simelton proceeded pro se. His brief
and the Anders brief raised the issue of whether his guilty
plea was entered into knowingly, intelligently and volun-
tarily. The Wisconsin Court of Appeals explained that
the trial court properly followed the procedures set out in
State v. Bangert, 389 N.W.2d 12 (Wis. 1986) in taking the
guilty plea and dismissed Simelton’s other bases for arguing
that his plea was improper. The Wisconsin Supreme Court
denied Simelton’s request for review.


                      II. ANALYSIS
  Simelton’s claim is governed by 28 U.S.C. § 2254(d),
which provides for relief only if the state court decision was
either contrary to or an unreasonable application of clearly
established federal law as determined by the Supreme
Court. See Williams v. Taylor, 529 U.S. 362, 404-05 (2000).
We review the decision of the last state court to rule on the
6                                                No. 05-2227

merits of petitioner’s claim, Charlton v. Davis, 439 F.3d
369, 374 (7th Cir. 2006) (citation omitted), which in this
case is the decision of the Wisconsin Court of Appeals. The
magistrate judge’s findings of fact are reviewed for clear
error and the legal conclusions de novo. Richardson v.
Briley, 401 F.3d 794, 799 (7th Cir. 2005) (citations omitted).
  A decision is “contrary to” federal law when the state
court applies a rule that “contradicts the governing law set
forth by the Supreme Court,” or when an issue before the
state court “involves a set of facts materially indistinguish-
able from a Supreme Court case,” but the state court
rules in a different way. Boss v. Pierce, 263 F.3d 734, 739
(7th Cir. 2001) (citing Williams, 529 U.S. at 405-06). “ ‘A
state-court decision that correctly identifies the govern-
ing legal rule but applies it unreasonably to the facts of
a particular petitioner’s case’ qualifies as a decision involv-
ing an unreasonable application of clearly established
federal law.” Id. (quoting Williams, 529 U.S. at 407-08). An
“unreasonable application” of law, while not easy to define
in the abstract, is at least worse than a merely incorrect
decision. Id.
  Simelton argues that the proceedings in state court
resulted in a decision contrary to clearly established federal
law as determined by the Supreme Court. However,
Simelton does not take issue with any legal pronouncement
made by the Wisconsin Court of Appeals when it denied his
claim for habeas relief, and he also has no quibble with
Bangert, the case upon which the Wisconsin Court of
Appeals relied to reject Simelton’s claim. Nor does Simelton
argue that his case involves facts materially indistinguish-
able from a Supreme Court case.
  Instead, Simelton’s argument is that the Wisconsin Court
of Appeals was wrong to determine that the record sup-
ported a finding that his plea was made voluntarily,
knowingly and intelligently as required by federal law. This
argument concerns the application of law, and, as such,
No. 05-2227                                                 7

relief can only be granted to Simelton if we determine that
the decision of the Wisconsin Court of Appeals was unrea-
sonable, which, as we explain, it is not. See Boss, 263 F.3d
at 739.
  The heart of Simelton’s request for relief is that when
he pled guilty to the two counts of sexual assault he
allegedly did not understand that the victim’s lack of
consent was an element of the crime. As proof of this
assertion he directs us to his comments at his sentencing
hearing (occurring about a month after the entry of his
guilty plea) where he refused to say “that I’m in the wrong,”
and seemed to infer consent on the part of the victim.
  The obvious problem with this contention is that when
Simelton pled guilty the trial judge asked him whether
he “[understood] that the State would have to prove at trial
that . . . you did have sexual intercourse . . . with [the
victim], without her consent by threat of force” (emphasis
added), and Simelton responded that he did understand. We
cannot find it unreasonable for the Wisconsin Court
of Appeals to hold Simelton to the admissions made at
his guilty plea notwithstanding his later attempt to miti-
gate culpability at sentencing. Our cases, in fact, routinely
hold that admissions of criminal conduct made during a
guilty plea are taken seriously and presumed to be true,
e.g., United States v. Schuh, 289 F.3d 968, 975 (7th Cir.
2002) (citations omitted), and that bare protestations of
innocence made after the formal entry of a guilty plea are
insufficient to render a plea invalid, United States v.
Carroll, 412 F.3d 787, 792 (7th Cir. 2005).
   Any confusion as to Simelton’s precise education level will
also not invalidate the plea. As to this issue, the Wisconsin
Court of Appeals reasonably explained that while
“Simelton’s education level is significant to the extent that
it reflects on his ability to understand the elements of the
offense, the maximum penalties and the constitutional
8                                                No. 05-2227

rights he waived,” neither Simelton nor an independent
review of the record shows “any impairment in [his] ability
to understand those matters.” Furthermore, Simelton’s
initial erroneous request for an Alford plea, which was
quickly corrected by his counsel, fares no better. “The
voluntariness of [a] plea can be determined only by consid-
ering all of the relevant circumstances surrounding it.”
Brady v. United States, 397 U.S. 742, 749 (1970) (citations
omitted). Our review of the record leads to the conclusion
that the Wisconsin Court of Appeals reasonably held
Simelton’s guilty plea was entered into knowingly, volun-
tarily and intelligently as required by clearly established
federal law.
   Finally, we note that the driving force behind this petition
appears to be Simelton’s surprise at receiving a thirty-year
prison sentence. Simelton is no stranger to the criminal
justice system. In fact, he has a self-described “checkered
history with the law.” His previous convictions include
fourth degree sexual assault, retail theft, battery, and a
first degree reckless homicide conviction where, according
to Simelton, his only involvement was holding the knife
that the victim inadvertently used to kill himself by rolling
over on it. It is a fair inference from the record that instead
of forcing the state to trial on these previous convictions,
Simelton opted to play ball in the hopes of receiving
palatable punishment. It worked out well for him, as he
explained in his pro se brief to the Wisconsin Court of
Appeals, because he has had (until now) “what one would
call . . . overall fair and some would say lenient experiences”
with the criminal justice system of the State of Wisconsin,
which always led to what Simelton described as a “positive
outcome.” Apparently the thirty years’ imprisonment given
in this case—10 years less than the maximum—was not
quite the “positive outcome” Simelton expected. But it is not
an unreasonable application of clearly established federal
law to say that underestimating the severity of the sentence
No. 05-2227                                               9

to be imposed has no effect on an otherwise valid guilty
plea. See, e.g., United States v. Knorr, 942 F.2d 1217, 1220
(7th Cir. 1991) (citation omitted).


                   III. CONCLUSION
  For the foregoing reasons, the judgment is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-1-06
