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State appellate court didn’t err in denying defendant’s fair trial claim

Cory M. Welch v. Randall Hepp, 7th Circuit Court of Appeals No. 14-1164, 7/14/15

The Wisconsin Court of Appeals rejected Welch’s claim that he was denied a fair trial because of two improper comments by two witnesses. His habeas petition was denied by the district court, and the Seventh Circuit affirms, holding Welch has not shown that the Wisconsin appellate court’s decision was “so lacking in justification” that there is no possibility for “fairminded disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011).

At Welch’s trial for a string of robberies, one police officer offered (in response to defense counsel’s questions) that “[b]ased on the things that I know about him, his character, the crimes that I know he’s committed, I took a look in the car to make sure that nothing was secreted,” while another stated (incorrectly) “Yes, I believe that we were in another proceeding with the defendant, Cory Welch, where he was on trial for about 11, 12 other robberies … .” (Slip op. at 2-4). As to the first statement, the state court held any deficient performance by defense counsel wasn’t prejudicial; as to the second statement, the state court found the error in admitting it to be harmless. Neither conclusion is an unreasonable application of, or contrary to, clearly established federal law:

The record supports the state court’s application of Strickland and its conclusion that no prejudice resulted from any error. The Wisconsin appellate court considered the substantial quantity and quality of the evidence against Welch, including the victims’ testimony establishing a clear modus operandi, Welch’s flight from law enforcement, his accomplices’ testimony identifying him as a participant in multiple robberies, the DNA found on the ski masks, and the duffel bag found in “the Moneymaker [Welch’s name for his green Buick Skylark getaway car],” not to mention the existence and name of “the Moneymaker” itself. We also cannot overlook the victims’ testimony as to the robbers’ heights, weights, and skin tones even if the victims could not identify faces. ….


The state court’s finding of harmless error here was not only reasonable but correct. The state court assumed it was improper to allow the jury to hear the officers’ statements but concluded that the comments did not skew the jury’s ability to assess accurately the accomplice testimony, the DNA and ballistics evidence, and all the other evidence tying Welch and his “Moneymaker” to numerous robberies. We agree. Because the evidence against Welch was so strong, the two statements he considers improper neither prejudiced him nor influenced the jury’s verdict. …. (Slip op. at 8-9).

Welch’s ineffective assistance arguments go beyond the issue on which the court granted a certificate of appealability, and the court reminds habeas petitioners (and their lawyers) that they must ask permission before arguing non-certified claims. (Slip op. at 6). “In this case the procedural misstep is harmless, though, because Welch cannot succeed under either theory [ineffective assistance or denial of a fair trial].” (Id. at 7).

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