In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2631

JOACHIM E. DRESSLER,

Petitioner-Appellant,

v.

GARY R. MCCAUGHTRY,

Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 C 431--William E. Callahan, Jr., Magistrate Judge.


Argued October 26, 2000--Decided February 1, 2001




  Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. James Madden was last seen
alive during the early evening hours of June 26,
1990, in the town of Raymond, Wisconsin. Two days
later his legs and torso were found in yellow
plastic bags in a farmer’s field approximately 3
miles southwest of the site of his disappearance.
Madden’s skull and arms were discovered 2 weeks
later--also enclosed in yellow plastic bags--
approximately 3 miles northeast of the
disappearance site. Tests revealed that Madden
was the victim of a vicious attack: his genitalia
and several other organs were cut from his body;
his ankles, wrists, and neck exhibited ligature
marks; and fragments, consistent with metal
bullets, were embedded in his skull. Madden’s
wounds demonstrated that the mutilation occurred
both before and after his death.

  Prior to his disappearance, Madden was
soliciting door-to-door for the Citizens for a
Better Environment. Madden was last seen by the
next-door neighbors of Joachim Dressler and his
scheduled route would have made Dressler’s home
his next stop. Due to these circumstances, the
fact that Dressler was home alone the night of
Madden’s disappearance, and Dressler’s admission
that he (at least at one time) owned yellow trash
bags, the investigation focused on Dressler.
Pursuant to a warrant, police searched Dressler’s
home, seizing a number of items including
firearms, knives, saws, ropes, and bloodstain
samples. In addition, the police seized a
briefcase which contained videotapes,
photographs, and magazines depicting murder and
mutilation victims, as well as homosexual
pornography. With these discoveries, Dressler
became an even hotter suspect, but no arrest was
made.

  A major break in the investigation came several
weeks later on August 8, when Sherwin Beyer, a
neighbor of Dressler’s, reported to the Racine
County sheriff’s department that Dressler
admitted to him that he was responsible for
Madden’s death. Specifically, Dressler told Beyer
that Madden was soliciting at Dressler’s home
when they discovered they had a mutual interest
in guns. Dressler and Madden went to the back
yard to do some practice shooting with a rifle.
At some point, Dressler returned to the house to
retrieve a handgun and, upon returning,
accidentally shot Madden in the back of the head
while clearing the gun. Dressler told Beyer he
then cut out Madden’s brain and put it down the
garbage disposal. Shortly after this new
information came to light, Dressler was arrested
and charged with first degree intentional
homicide.

  Based on the materials found in Dressler’s
home, and the nature and extent of Madden’s
wounds, the State’s theory of the offense was
"homosexual overkill." Although the murder weapon
was never specifically identified, the State
introduced into evidence various weapons found at
Dressler’s home in order to demonstrate that he
had the means to inflict the type of injuries
Madden suffered. In addition, the videotapes and
pictures seized from Dressler’s home played a
prominent role in the State’s case. The trial
court admitted, over Dressler’s objections, these
materials as "other acts" evidence under
Wisconsin Statute sec. 904.04(2), holding that
they were relevant to the State’s theory of
homosexual overkill because they were probative
of Dressler’s homosexuality and fascination with
violence.
  Dressler’s defense centered on the lack of
physical evidence linking him to Madden’s murder
and on demonstrating that others could have been
responsible for the crime. The defense did not
deny Dressler’s statement to Beyer, but rather
presented expert testimony on an alcohol-related
phenomenon called confabulation. The defense
expert testified that alcohol abusers, like
Dressler, may invent stories based upon a
combination of truth and imagination in order to
explain alcohol-induced memory loss. Dressler
argued that the story he told Beyer was
confabulated from two separate incidents. First,
he pointed to the testimony of Keith Erickson,
who told the jury that he came to Dressler’s home
approximately 2 weeks after the Madden murder to
inquire about a car Dressler was selling. After
discovering that he and Dressler shared an
interest in guns, they shot a rifle in Dressler’s
back yard, and at some point Dressler went back
inside the house and returned with a handgun.
When they were finished shooting, Dressler and
Erickson engaged in homosexual sex. Second,
Dressler flagged for the jury certain questions
Racine County Sheriff Robert Rohner asked him
during an August 1, 1990, interrogation.
Specifically, Sheriff Rohner told Dressler that
he believed Dressler shot Madden in the head,
broke open his skull, and put his brain down the
garbage disposal and into the septic system.
Dressler argued that his "confession" to Beyer
was a figment of his imagination which combined
these two incidents. The jury didn’t buy
Dressler’s confabulation theory and found him
guilty of first degree intentional homicide.

  On a motion for postconviction relief in the
trial court, Dressler objected for the first
time, on specific First Amendment grounds, to the
introduction of his videotapes and pictures into
evidence./1 In opposing Dressler’s motion the
State did not argue that this objection was
untimely or barred for any other procedural
reason. The trial court denied Dressler’s motion
without setting forth its reasoning.

  Dressler appealed to the Wisconsin Court of
Appeals, asking that his conviction be reversed
on numerous grounds, including (1) the trial
court’s refusal to strike certain prospective
jurors for cause, (2) the admission of numerous
pieces of evidence, including the videotapes and
pictures found in his home, (3) the alleged
insufficiency of the evidence, (4) the trial
court’s refusal to give his proposed jury
instructions, and (5) alleged prosecutorial and
judicial misconduct. The Court of Appeals
addressed and rejected most of these alleged
errors on the merits. With respect to Dressler’s
First Amendment objection to the videotapes and
photographs depicting intentional violence and
homosexual acts, however, the court held that
"[t]his argument was not presented to the trial
court and we will not consider it for the first
time on appeal." State v. Dressler, 1993 WL
469759, at *6 (Wis. Ct. App. Nov. 17, 1993).
Dressler’s petition for review before the
Wisconsin Supreme Court and his petition for
certiorari to the United States Supreme Court
were denied.

  On April 22, 1997, Dressler petitioned the
United States District Court for the Eastern
District of Wisconsin for a writ of habeas
corpus, setting forth eight grounds in support of
his prayer for relief, which substantially mirror
the arguments he presented to the Wisconsin Court
of Appeals. Because Dressler’s petition was filed
after the effective date of the Antiterrorism and
Effective Death Penalty Act, Pub. L. No. 104-132,
110 Stat. 1214, Magistrate Judge William E.
Callahan, Jr. reviewed Dressler’s claims that
were adjudicated on the merits by the Wisconsin
Court of Appeals (i.e., all but the First
Amendment claim) under the standard set out in 28
U.S.C. sec. 2254(d). Finding that the state court
had not made "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[,] . . . or
that was based on an unreasonable determination
of the facts in light of the evidence presented
in the State court proceeding," 28 U.S.C. sec.
2254(d), the judge declined to issue a writ. The
judge went on to reject Dressler’s First
Amendment argument on both procedural and
substantive grounds, applying the de novo
standard of review that prevailed prior to the
Antiterrorism and Effective Death Penalty Act.
See Milone v. Camp, 22 F.3d 693, 698 (7th Cir.
1994). First, in reliance on the Wisconsin Court
of Appeals’ opinion, the judge held that Dressler
procedurally defaulted his First Amendment claim
by failing to raise it, "in any form," before the
trial court./2 Second, the judge held that the
introduction of the videotapes and pictures found
in Dressler’s home did not implicate his First
Amendment rights. He was not tried for possession
of these materials, but for murder, and the fact
that he was a homosexual with a peculiar interest
in death and mutilation supported the State’s
theory of the case.

  Unwilling to accept defeat, Dressler asked Judge
Callahan to issue a certificate of appealability
pursuant to 28 U.S.C. sec. 2253(c), a necessary
prerequisite to this appeal./3 Citing the
dissent in United States v. Giese, 597 F.2d 1170
(9th Cir. 1979), the judge found that Dressler’s
First Amendment argument "is debatable among
jurists of reason or, at least, is one that is
adequate to deserve encouragement to proceed
further." Accordingly, he certified that issue.
The judge refused to issue a certificate of
appealability as to Dressler’s other arguments,
and we decline Dressler’s invitation to expand
the certificate to include them. We therefore
address only Dressler’s First Amendment argument,
which is borderline frivolous at best.

  The first step in our analysis is to determine
whether Dressler gave the state court "a full and
fair opportunity to review" his claims "through
its own judicial processes before asserting
federal review." Farrell v. Lane, 939 F.2d 409,
410 (7th Cir. 1991); see also 28 U.S.C. sec.
2254(b). If he either failed to exhaust all
available state remedies or raise all claims
before the state courts, his petition must be
denied without considering its merits. See Thomas
v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000).
A claim that is procedurally defaulted can be
rehabilitated and presented in a habeas petition
only if the prisoner can demonstrate cause and
prejudice for the default, or show that a failure
to grant relief would work a fundamental
miscarriage of justice. Coleman v. Thompson, 501
U.S. 722, 750 (1991). Here, Judge Callahan denied
Dressler’s habeas petition in part because,
according to the Wisconsin Court of Appeals, he
never presented his First Amendment objection to
the trial court, and therefore he procedurally
defaulted the claim.

  The State now concedes that the basis of the
judge’s finding of procedural default--the
Wisconsin Court of Appeals’ conclusion that
Dressler never presented his First Amendment
argument to the trial court--was erroneous. The
State argues, however, that Dressler’s failure to
object (on First Amendment grounds) at the time
the videotapes and pictures were admitted into
evidence effected the procedural default, and
that the default was not cured by the belated
assertion of the First Amendment objection in the
postconviction motion. The State says a timely
objection is required, Wis. Stat. sec.
901.03(1)(a), which means one must be made "’as
soon as the opponent might reasonably be aware of
the objectionable nature of the testimony.’"
Simpson v. State, 266 N.W.2d 270, 276 (Wis. 1978)
(citing West v. State, 246 N.W.2d 675, 681 (Wis.
1976)); see also State v. Waites, 462 N.W.2d 206,
211 (Wis. 1990) (failure immediately to object to
in-court identification of photograph of accused
waived issue on appeal); Chitwood v. A.O. Smith
Harvestore Prods., Inc., 489 N.W.2d 697, 704
(Wis. Ct. App. 1992) (defendants’ failure to move
to strike testimony at the close of evidence,
when it first became clear that a sufficient
foundation would not be laid, waived issue on
appeal). Here, Dressler made no specific First
Amendment objection to the introduction of the
videotapes and pictures when they were introduced
into evidence. This violation of the
contemporaneous objection rule would, under most
circumstances, constitute an independent and
adequate state procedural ground for rejecting
Dressler’s appeal, precluding habeas review./4
Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977).

 There are two problems with the State’s
argument under the very unique facts of this
case, however. First, the Wisconsin Court of
Appeals did not rely upon the contemporaneous
objection rule in rejecting Dressler’s First
Amendment claim; rather, it relied upon the
erroneous conclusion that Dressler waived the
argument by completely failing to present it to
the trial court at any time. Thus, the court did
not confront the question of whether an objection
to the admission of evidence via a postconviction
motion, which the trial court denied without
explaining whether its reason(s) were procedural
or substantive, is sufficient to preserve an
issue for appeal in the absence of a
corresponding trial objection. The parties have
cited no Wisconsin case directly addressing this
issue. Second, when faced with the belated
assertion of the First Amendment argument in
Dressler’s postconviction motion, the state
prosecutor did not contend that the issue was
waived. Thus, Dressler argues that the State has
waived any procedural bar to consideration of the
merits of his First Amendment argument. Because
these are close questions of state procedural
law, we are disinclined to decide them. For that
reason, we’ll consider the merits of Dressler’s
argument, which, as we said, goes nowhere.

  The trial court admitted the videotapes and
pictures of intentional violence and homosexual
acts pursuant to Wis. Stat. sec. 904.04(2), which
authorizes the introduction of "[e]vidence of
other crimes, wrongs, or acts . . . when offered
. . . as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident." According to the
trial court, the "act" in this case was
Dressler’s possession of the materials in
question. The videotapes and pictures depicting
intentional violence were admitted as evidence of
Dressler’s motive, intent, and plan to murder
Madden, as well as evidence that Madden’s death
was not an accident. The pictures of homosexual
acts, the trial court held, were probative of
Dressler’s homosexual orientation and therefore
supported the State’s homosexual overkill theory,
i.e., that Madden’s death was particularly brutal
and violent. We review Dressler’s claim that
these rulings violated his First Amendment
rights, a question of law, de novo. See generally
Potts v. City of Lafayette, Ind., 121 F.3d 1106,
1110-11 (7th Cir. 1997).

  Dressler mounts a two-pronged argument, starting
with the undisputed premise that the videotapes
and photographs found in his home are protected
by the First Amendment. He then argues that the
materials depicting intentional violence were
inadmissible evidence of his propensity for
violence and that the admission of these
materials permitted the jury to make the
impermissible presumption that he acted in
conformity with the depictions in the
photographs. The State’s use of the videotapes
and pictures, Dressler contends, will have a
chilling effect on the exercise of the public’s
protected right to read such materials because
the ideas depicted will be attributed to those
who possess them. With respect to the pictures of
homosexual acts, Dressler argues that the State’s
theory of the case employed backward reasoning.
Dressler points out that the homosexual overkill
theory did not develop until the pictures were
discovered in Dressler’s home; Madden’s body
exhibited no signs of homosexual activity, a
circumstance common in cases of homosexual
overkill. Thus, the State used the pictures to
both create and corroborate its homosexual
overkill theory: the murder was homosexual
overkill because Dressler is a homosexual. This
reasoning, according to Dressler, presumed his
guilt.

  As the State points out, much of Dressler’s
argument seeks to rehash the trial court’s
evidentiary rulings concerning the relevance of
the videotapes and pictures. Indeed, Dressler’s
contention that those materials are inadmissible
evidence of his propensity for violence has
nothing to do with the First Amendment, but
rather directly challenges the trial court’s sec.
904.04 analysis. We consider this argument beyond
the scope of the certificate of appealability,
which limits our review to whether "the
introduction into evidence of [the videotapes and
pictures], the possession of which were protected
by the First Amendment, and which were then used
by the State to help prove its theory of
’homosexual overkill’ violated the petitioner’s
First Amendment rights." In addition, evidentiary
rulings of state trial courts are normally not
subject to habeas review. See United States ex
rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th
Cir. 1974). In order to claim a right to relief,
a petitioner must establish that the incorrect
evidentiary ruling was so prejudicial that it
violated his due process right to a fundamentally
fair trial, creating the likelihood that an
innocent person was convicted. See Thompkins v.
Cohen, 965 F.2d 330, 333 (7th Cir. 1992).

  In any event, we reject Dressler’s relevance
and propensity arguments. The fact that Dressler
maintained a collection of videos and pictures
depicting intentional violence is probative of
the State’s claim that he had an obsession with
that subject. A person obsessed with violence is
more likely to commit murder, and therefore the
videos and photographs are relevant. See Wis.
Stat. sec. 904.01 ("’Relevant evidence’ means
evidence having any tendency to make the
existence of any fact that is of consequence to
the determination of the action more probable or
less probable than it would be without the
evidence."). Similarly, a person who possesses
photographs of homosexual acts coupled with
depictions of extreme violence might be more
inclined to commit a crime exhibiting the
characteristics of homosexual overkill.

  We also believe that the videos and pictures
are not inadmissible character or propensity
evidence. Although evidence of the general
character of a defendant is inadmissible to prove
he acted in conformity therewith, sec. 904.04(2)
contains an exception to the rule of
inadmissibility for evidence offered to prove,
among other things, motive, intent, plan, or
absence of mistake or accident. Here, the
pictures depicting violence were offered to prove
Dressler’s fascination with death and mutilation,
and this trait is undeniably probative of a
motive, intent, or plan to commit a vicious
murder. In addition, Dressler’s possession of
those materials rebuts the portion of his
statement to Beyer in which he claimed that
Madden’s killing was accidental. Finally, the
pictures of homosexual acts, given the State’s
homosexual overkill theory, clearly go to motive.
Although the videotapes and pictures may also
prove bad character or propensity, they were
offered for permissible purposes./5

  Dressler’s First Amendment argument takes a
slightly different tack. Citing a litany of cases
setting out the well-established protections of
the First Amendment, Dressler contends that the
trial court violated his rights by permitting the
jury to attribute to him the ideas depicted in
the videos and photographs. Even if the materials
were relevant to his state of mind, and even if
they were offered for a purpose permitted by sec.
904.04(2), Dressler maintains that they still
must be excluded because their admission
"effectively eviscerate[s] the First Amendment
protection to look at, read or possess such
materials."

  The fundamental flaw in Dressler’s First
Amendment argument, and the major distinguishing
factor in the string of broad First Amendment
cases he relies upon, is that he was not
convicted of possessing, distributing, or looking
at the videos and pictures in question. Although
they may have helped convict Dressler of murder,
he never explains how his right to possess or
look at them was affected by their use as
evidence against him. And Dressler dramatically
overstates the potential chilling effect of the
evidentiary use of these materials, as they
formed only one link in the long chain of
evidence that proved his guilt. Dressler, 1993 WL
469759, at *12. Innocent citizens, who presumably
would not face a mountain of other circumstantial
evidence of their guilt, need not fear a murder
prosecution based on the mere possession of
lawful videotapes and photographs.

  The guilty, however, should be wary. As we held
in Lac du Flambeau Band of Lake Superior Chippewa
Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991
F.2d 1249, 1260 (7th Cir. 1993), "[w]hile the
[F]irst [A]mendment in fact does preserve the
right to speak offensively, it does not provide
a shield against the logical import of that
speech." In that case, a group formed to protest
the exercise of fishing rights granted to Native
Americans appealed an injunction imposed against
its members. The group argued that the district
judge erred in considering speech protected by
the First Amendment as evidence of racial animus.
Id. at 1259. We soundly rejected this argument,
holding that merely drawing logical conclusions
from the content of protected speech does not
interfere with the exercise of the right to
speak. Id. at 1260./6 That is exactly what
happened here: the jury was permitted to draw an
inference about Dressler’s state of mind based on
the fact that he maintained a collection of
photographs depicting fates similar to that
suffered by Mr. Madden.

  Not only does this inference have nothing to do
with the First Amendment, but it is eminently
logical as well. If Dressler were accused of
causing an explosion, a jury could logically
infer his guilt from the fact that a bomb-making
manual was found at his home. There is no
principled way to distinguish Dressler’s
videotapes and pictures from the bomber’s manual.

  Finally, although the issue is beyond the scope
of the certificate of appealability, we’ll say a
word about the allegedly circular reasoning
employed by the State with respect to proof of
the homosexual overkill theory. According to
Dressler, the only evidence of homosexual
overkill presented by the State was his status as
a homosexual, which was established solely by the
pictures discovered in his home. The premises of
Dressler’s argument are faulty, however. The
State’s expert, Dr. Jeffrey Jentzen, testified
that the wounds suffered by Madden were
consistent with homosexual overkill, and
Dressler’s homosexuality was established not only
by the materials seized from his home, but also
by the testimony of Keith Erickson, who admitted
engaging in homosexual acts with Dressler. More
importantly, the homosexual overkill theory was
merely the State’s explanation of Dressler’s
motive, which is not an essential element of the
State’s case. See Wis. JI-Criminal 175 ("While
motive may be shown as a circumstance to aid in
establishing the guilt of a defendant, the State
is not required to prove motive on the part of a
defendant in order to convict.").

  The denial of habeas relief is AFFIRMED.

/1 The Wisconsin Court of Appeals found that
Dressler had not presented his First Amendment
objection to the trial court. State v. Dressler,
1993 WL 469759, at * 6 (Wis. Ct. App. Nov. 17,
1993). This finding is factually incorrect.
Whether Dressler’s chosen method of presenting
that objection--by postconviction motion rather
than by a contemporaneous objection--is
sufficient to preserve the issue for appellate
review is an entirely different question,
however.

/2 The judge cannot be faulted because the
postconviction motion in which Dressler raised
his First Amendment claim was not included in the
record provided to the him. The State now
concedes that the First Amendment objection was
raised in that motion.

/3 An ambiguity in the language of sec. 2253(c)
creates some question as to whether a district
judge (or in this case a magistrate judge) has
the power to issue a certificate of
appealability. See Williams v. United States, 150
F.3d 639, 640 (7th Cir. 1998). We follow our
previous holding that either a district judge (or
magistrate judge) or a circuit judge may issue
the necessary certificate. See id. at 640-41.

/4 State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis.
1994), is a red herring. In that case the
Wisconsin Supreme Court overruled a prior
decision holding that prisoners may raise on
collateral attack any constitutional argument
they omitted on direct appeal. See Bergenthal v.
State, 242 N.W.2d 199, 203 (Wis. 1976). Now,
prisoners must present a "sufficient reason" for
their failure to raise such arguments. Escalona-
Naranjo, 517 N.W.2d at 164. Here, however,
Dressler did raise his First Amendment argument
on direct appeal; the State asserts that the
argument was waived at the trial court level. So
neither Escalona-Naranjo nor Bergenthal applies
to this case. In any event, Dressler filed his
direct appeal prior to the publication of
Escalona-Naranjo, so, if anything, the rule set
out in Bergenthal would apply. See Liegakos v.
Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997).

/5 Dressler is misguided to the extent he argues the
materials were inadmissible because his act of
possessing them was lawful. The statute
explicitly permits the admission of evidence of
"other crimes, wrongs, or acts," Wis. Stat. sec.
904.04(2) (emphasis added), and the other "acts"
need not be criminal. See State v. Peters, 534
N.W.2d 867, 875 (Wis. Ct. App. 1995).

/6 To the extent our decisions in Lac du Flambeau or
in this case conflict with the dissent in Giese,
597 F.2d at 1208-09, we reject the reasoning
therein.
