                          NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                    Fed. R. App. P. 32.1




              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                Submitted November 4, 2010*
                                 Decided November 9, 2010
                                Amended November 9, 2010

                                           Before

                             RICHARD A. POSNER, Circuit Judge

                             DIANE P. WOOD, Circuit Judge

                             ANN CLAIRE WILLIAMS, Circuit Judge

No. 10-1132

REINALDO C. ACOSTA,                              Appeal from the United States District
     Petitioner-Appellant,                       Court for the Eastern District of Wisconsin.

       v.                                        No. 06-C-0823

MICHAEL THURMER,                                 Charles N. Clevert, Jr.,
    Respondent-Appellee.                         Chief Judge.



                                         ORDER

      Reinaldo Acosta and another man forced their way at gunpoint into an apartment in
Milwaukee, Wisconsin, and robbed the tenant and her three male guests. Acosta then raped
the woman while his cohort, who pleaded guilty but did not testify at Acosta’s trial,
watched over the men. On his way out Acosta shot one of the men. A Wisconsin jury found
him guilty of armed robbery, kidnaping, sexual assault, and reckless injury. He was


       *
         After examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP.
P. 34(a)(2)(C).
No. 10-1132                                                                             Page 2

sentenced to 48 years’ imprisonment. The district court denied his petition for a writ of
habeas corpus, see 28 U.S.C. § 2254, but granted a certificate of appealability permitting
Acosta to appeal his claims that he was denied a fair trial because the judge did not let him
question the rape victim about her misdemeanor convictions for prostitution and allowed
the shooting victim to identify him at trial. By discussing his double-jeopardy claim in his
brief on appeal, Acosta impliedly asks us to expand the certificate of appealability to
include a double-jeopardy claim, but we decline. We affirm the judgment.

        At trial it was undisputed that late one evening in September 2001, two armed,
masked men forced their way into Denise Collins’s apartment while she was at home with
her boyfriend, her brother, and a friend, Anthony Howell. After robbing the victims, one of
the intruders raped Collins in her bedroom while the other guarded the men in the living
room. Both of the assailants removed their masks while in the apartment, and before
exiting one of them shot Howell in the thigh. None of the victims claimed to know the
intruders, but Acosta was linked to the rape through DNA. Collins testified at trial that he
raped her, and Howell identified him as the shooter.

         In Wisconsin a witness can be asked if she has any convictions and, if so, how
many, but in general the types of convictions cannot be used to impeach the witness’s
credibility. W IS. STAT. §§ 904.04, 906.09; State v. Payano, 768 N.W.2d 832, 850-52 (Wis. 2009)
(citing State v. Sullivan, 576 N.W.2d 30 (Wis. 1998)). Acosta nonetheless argued that he
should be allowed to elicit from Collins that her criminal history included convictions for
prostitution, none of which involved Acosta. Defense counsel represented that Acosta and
Collins knew each other before the home invasion because Acosta had been paying her
with drugs and money for consensual sex. One of their “drug dates,” Acosta would testify,
had occurred earlier on the day of the home invasion and explained the presence of his
DNA. Acosta’s theory was that Collins had falsely identified him as one of the assailants
because she was angry that he shorted his payment for their sex earlier that same day. The
trial court denied Acosta’s request, reasoning that inquiry into the nature of the
prostitution convictions (none of which involved an allegation of false accusation) was
precluded by Wisconsin’s rape-shield statute, see W IS. STAT. § 972.11(2)(b). The court
permitted Acosta to question Collins about the number of her prior convictions and to
cross-examine her about whether they had a sexual history, including “drug dates.” The
court also permitted Acosta to question Collins about her purchase and use of drugs on the
day of the crime.

        Acosta was tried in December 2003. Well before then, Howell had identified him at a
preliminary hearing in November 2001—about six weeks after the home invasion—and
again during a February 2002 lineup. Acosta’s counsel was not present at the lineup. As a
result, Acosta moved in limine to suppress the lineup identification and to prevent Howell
No. 10-1132                                                                               Page 3

from identifying him at trial. Acosta argued that a trial identification would be tainted both
by the lineup and by what he characterized as a suggestive confrontation at the preliminary
hearing. The trial judge excluded evidence of the lineup identification since the state
conceded that Acosta had not waived his right to counsel and yet the lawyer was not
present. On the other hand, the court concluded that, even if the preliminary hearing had
been suggestive because Acosta was dressed in a jail jumpsuit and was seated alone with
his lawyer when he was singled out, Howell had an independent basis for his
identification. The prosecutor did not make use of the preliminary-hearing identification,
however, and the jury learned about it only because Acosta introduced it in trying to
convince the jury that Howell identified him at trial only because of the suggestiveness of
the preliminary hearing.

        On direct appeal from his convictions, Acosta argued, among other claims, that he
was denied a fair trial because the trial judge (1) excluded evidence that Collins had been
convicted of prostitution and (2) permitted Howell to identify him at trial despite the
lineup and the suggestiveness of the preliminary hearing. The Wisconsin Court of Appeals
affirmed the convictions, and the Wisconsin Supreme Court denied review. Acosta then
filed his § 2254 petition.

       We review the district court’s decision denying the petition de novo and its factual
findings for clear error. Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010). Federal courts may
grant relief under § 2254 only if the state court’s determination was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court” or “based on an unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 405-06 (2000);
Goudy v. Basinger, 604 F.3d 394, 399 (7th Cir. 2010). We defer to the decision of the last state
court to address the merits, and presume correct its factual findings unless Acosta rebuts
that presumption with clear and convincing evidence. Goudy, 604 F.3d at 399.

       On appeal Acosta again argues that the trial court erred by excluding evidence that
Collins had been convicted of prostitution. Acosta maintains that the right to confrontation
trumps Wisconsin’s rape-shield statute, see W IS. STAT. § 972.11(2); State v. St. George, 643
N.W.2d 777, 783 (Wis. 2002), which protects victims of sexual assault by preventing
introduction of evidence of prior sexual activity.

       The Wisconsin Court of Appeals reasonably applied established federal law in
concluding otherwise. The court cited the balancing test articulated in State v. Pulizzano, 456
N.W.2d 325, 333 (Wis. 1990), which requires a defendant seeking to overcome the rape-
shield statute to satisfy a test that begins with a showing that the prior sexual activity
No. 10-1132                                                                             Page 4

occurred, the conduct closely resembled the present case, the conduct is relevant to a
material issue, the evidence is necessary to the defendant’s theory of defense, and the
probative value outweighs any prejudicial effect. Id.; St. George, 643 N.W.2d at 782. Only if
this showing has been made does the trial court then examine whether a compelling state
interest overcomes the defendant’s right under the Confrontation Clause to present the
evidence. Pulizzano, 456 N.W.2d at 335.

        Applying this test, the Wisconsin Court of Appeals upheld the trial court’s
determination, concluding that Acosta was able to present his trial theory by confronting
Collins with the number of her prior convictions, but not the nature of those convictions
because the underlying facts did not suggest that Collins had ever falsely accused someone
of rape and thus did not satisfy the second Pulizzano factor. Though the Supreme Court has
not directly addressed this issue, see Hammer v. Karlen, 342 F.3d 807, 812 n.6 (7th Cir. 2003);
Pack v. Page, 147 F.3d 586, 589 (7th Cir. 1998), we have nonetheless noted before that the
Pulizzano balancing test is consistent with governing federal law, see Dunlap v. Hepp, 436
F.3d 739, 742 (7th Cir. 2006). Moreover, Acosta was able to present his defense to the jury
with little restriction; the trial court permitted him to question Collins about whether they
had a prior sexual relationship and about her drug use. We cannot conclude that the
Wisconsin court’s analysis was unreasonable.

        Nor can we conclude that the appellate court’s analysis of Acosta’s suggestive-
identification claim was unreasonable. Acosta renews his argument that the trial judge
should not have permitted Howell to identify him before the jury. His argument is two-
fold: that the circumstances of Howell’s initial identification at the preliminary hearing in
November 2001 rendered his identification at trial unreliable, and that Howell’s trial
identification was further tainted by the lineup conducted without counsel.

         But the record reflects that the Wisconsin Court of Appeals identified the correct
standard to address both of these contentions. The court employed the test identified in
United States v. Wade, 388 U.S. 218, 241 (1967), and Neil v. Biggers, 409 U.S. 188, 199-200
(1972), to determine whether Howell had an independent basis to identify Acosta at trial. A
petitioner who contends that an in-court identification (in this case Howell’s identification
at trial) violated his right to due process must demonstrate that a prior, unduly suggestive
procedure tainted that identification. Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir.
2003). If the petitioner meets that burden, the reviewing court must then decide whether
the in-court identification remained sufficiently reliable, under the totality of the
circumstances, to avoid potential misidentification. Id. In making this determination, the
court should consider several factors including any opportunity the witness had to observe
the crime, the accuracy of any prior description of the criminal by the witness, any prior
No. 10-1132                                                                            Page 5

misidentification by the witness, the lapse of time between the crime and the contested
identification, and the facts disclosed regarding the conduct of the contested lineup. Wade,
388 U.S. at 241; Gregory-Bey, 332 F.3d at 1045; see also Biggers, 409 U.S. at 199-200.

        Applying the factors identified in Wade, the Wisconsin Court of Appeals reasonably
concluded that Howell had ample opportunity to observe Acosta during the crime (first
from 18 to 22 feet away and then from just a few feet away before Acosta shot him) and that
Howell’s description of Acosta just after the crime was substantially consistent with his
physical characteristics (on the night he was shot Howell described the assailant as 5‘ 5“ or
5‘ 6“ and 145 to 150 pounds; Acosta was 5‘ 7“ and 160 pounds at the time of his arrest). The
court then considered Acosta’s argument that too much time had elapsed between the
crime and Howell’s preliminary-hearing identification but concluded that the six-week
gap, while significant, was not too long to permit a finding that Howell had an
independent basis to identify Acosta. See Biggers, 409 U.S. at 201 (concluding that
identification occurring 7 months after crime was reliable); Mills v. Cason, 572 F.3d 246, 252
(6th Cir. 2009) (9-month delay); McFowler v. Jaimet, 349 F.3d 436, 450 (7th Cir. 2003) (29-
month delay between crime and identification at trial).

                                                                                   A FFIRMED.
