Ferguson v. Miller

          UNITED STATES DISTRICT COURT                               
          EASTERN DISTRICT OF WISCONSIN                              


AARON FERGUSON,                                                           

Petitioner,                                                          

v.                                 Case No. 24-cv-1479-SCD           

ROBERT MILLER,                                                            
Warden, Racine Correctional Institution,                                  

Respondent.                                                          


                 DECISION AND ORDER                                  


Aaron Ferguson was tried in Wisconsin state court for the sexual assault of his 
daughter. Ferguson’s daughter, A.F., sat for a recorded forensic interview and later recanted. 
At trial, A.F. testified that she made up the abuse allegations. During the forensic examiner’s 
testimony and over defense’s objection, the State played the recorded interview for the jury. 
Ferguson was convicted of sexual assault and incest, and the state appellate court affirmed.  
Ferguson has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 
challenging the constitutionality of his convictions. Ferguson claims that the court violated 
his due process and confrontation rights by admitting the recorded interview into evidence. 
The respondent has moved to dismiss the petition, arguing that, first, Ferguson’s evidence 
claim is a question of state law and, second, any federal issue was not fairly presented to the 
state courts. Because Ferguson did not fairly present a federal claim in state court, and because 
Ferguson has failed to show an excuse for that default, I will grant the respondent’s motion, 
deny Ferguson’s petition, and dismiss this action.                        
                     BACKGROUND                                      
The State of Wisconsin charged Ferguson with repeated sexual assault of the same 
child and incest with a child after his daughter A.F. disclosed allegations of abuse to a friend. 
See ECF No. 1-3 at 1. A.F. sat for a forty-three-minute forensic interview that proceeded in 
two parts, with a break around minute thirty-three. ECF No. 1-1 ¶ 2. During the second part, 

the interviewer used “several leading questions to cover topics like ejaculation and the 
presence of her sister in the room on a shared bunkbed, as A.F. had previously reported that 
nobody was present in the room during the alleged assaults.” ECF No. 1-3 at 2. Soon 
thereafter, A.F. recanted the allegations. Id.; ECF No. 1-1 ¶ 3.          
Pre-trial, the State argued multiple pathways for the whole recorded interview to be 
played for the jury. See ECF No. 1-1 ¶¶ 3–5. The Hon. Maria S. Lazar decided many of the 
issues—finding that some portions of the recording couldn’t be admitted under the residual 
hearsay rule—and left “the ultimate decision … for the next judge.” Id. ¶ 5. Then Judge Lazar 
rotated off the case and it was transferred to the Hon. Brad D. Schimel, who took the matter 

under advisement for until after A.F. testified. Id. ¶ 6. At trial, A.F. testified that she made up 
the allegations. ECF No. 1-3 at 2. Later, during the forensic examiner’s testimony, the court 
admitted the whole recorded interview as extrinsic evidence of a prior inconsistent statement 
of a witness under Wis. Stat. § 906.13—in other words, not hearsay under Wis. Stat. § 
908.01(4)(a)1. ECF No. 1-1 ¶ 7.                                           
The jury found Ferguson guilty, and the court sentenced him to 10 years’ initial 
confinement and eight years’ extended supervision. ECF No. 1 at 2. On  direct appeal, 
Ferguson argued that it was error for Judge Schimel to admit the recording in full when Judge 
Lazar had already determined that a portion was inadmissible under the residual hearsay rule 
or a hearsay exception for lacking circumstantial guarantees of trustworthiness. ECF No. 1-1 
¶ 9; ECF No. 8-1 at 17, 19–20. Ferguson framed the issue on appeal like this:  
At a criminal trial, can a witness be cross-examined with a prior inconsistent 
statement, specifically a child forensic interview, and that statement be later 
introduced  as  extrinsic  evidence  pursuant  to  sections  908.01(4)(a)1.  and 
906.13(2)(a), Stats., when the prior statements in question are untrustworthy in 
that the forensic interviewer led the child witness during the interview to 
answers which plainly contradict other previous statements the child made 
during that same interview?                                          
ECF No. 8-1 at 7.                                                         
The court of appeals rejected Ferguson’s arguments. ECF No. 1-1 ¶ 12. It held that, 
under Wisconsin’s rules of evidence, the statement was not  hearsay and was therefore 
admissible: no judicial determination of inherent reliability required. Id. ¶¶ 10–12. Notably, 
the phrases “due process” and “confrontation clause” do not appear in Ferguson’s state 
appellate brief or the court of appeals decision. See id.                 
Robert Miller, the warden who has custody of Ferguson, has moved to dismiss the 
petition under the Rules Governing Section 2254 Cases in the United States District Courts 
and Rule 12(b)(6) of the Federal Rules of Civil Procedure. See ECF No. 7 at 1. Ferguson has 
submitted a brief opposing the motion. See ECF No. 9. And Miller has filed a reply brief. See 
ECF No. 11.                                                               
                      DISCUSSION                                     
Miller argues that Ferguson’s petition must be dismissed because his evidence claim is 
a matter of state law that is not cognizable in federal habeas corpus. ECF No. 8 at 2. In 
response, Ferguson contends that the state trial court’s handling of the recorded interview 
violated  his  confrontation  and  due  process  rights  under  the  Sixth  and  Fourteenth 
amendments. ECF No. 10 at 2. Ferguson argues that “the video was not admissible as a prior 
inconsistent statement under Wis. Stats. §908.01(4)(a) and therefore contained inadmissible 
hearsay that was introduced to the jury in violation of the confrontation clause, which is 
triggered when a party offers testimonial evidence not subject to proper cross-examination.” 
Id. Miller points out that addressing the constitutional claims would require disagreeing with 

the court of appeals’ resolution of state law; further, according to Miller, Ferguson did not 
fairly present a federal claim in state court. ECF No. 11 at 1–2.         
To the extent Ferguson challenges the state courts’ interpretation of Wisconsin rules 
of evidence, that claim is not cognizable under § 2254. A state prisoner like Ferguson may 
seek habeas relief under § 2254 “only on the ground that he is in custody in violation of the 
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Supreme Court 
has repeatedly explained “that ‘federal habeas corpus relief does not lie for errors of state 
law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 
(1990)). “[T]he admissibility of evidence in state courts is a matter of state law.” United States 

ex rel. Di Giacomo v. Franzen, 680 F.2d 515, 517 (7th Cir. 1982). “[E]ven if there had been an 
error of Wisconsin law regarding the admission of evidence, it is not our role to correct it.” 
Morgan v. Krenke, 232 F.3d 562, 567 (7th Cir. 2000). Here, Ferguson’s claim is ultimately 
about Wisconsin’s evidence rules; that’s a state law claim not cognizable on habeas review.  
To the extent Ferguson alleges that the trial court’s decision impacted his due process 
and confrontation clause rights, he did not fairly present that claim to the state courts. 
Evidentiary questions are subject to federal review under § 2254 if the admission of evidence 
resulted in the “denial of fundamental fairness or the denial of a specific constitutional right.” 
United States ex rel. Di Giacomo v. Franzen, 680 F.2d at 517 (citing United States ex rel. Clark v. 

Fike, 538 F.2d 750, 757 (7th Cir. 1976)). “Before seeking relief in federal court, a habeas 
petitioner must first give the State the opportunity to address and correct any alleged violation 
of his federal rights.” Brown v. Eplett, 48 F.4th 543, 552 (7th Cir. 2022); see also 28 U.S.C. § 
2254(b), (c). This means that the petitioner “must fairly present his federal claim through one 
complete round of review in state court, ‘thereby alerting that court to the federal nature of 

the claim.’” Brown, 48 F.4th at 552 (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)).  
“Fair presentment . . . does not require a hypertechnical congruence between the 
claims made in the federal and state courts; it merely requires that the factual and legal 
substance remain the same.” Anderson v. Benik, 471 F.3d 811, 814–15 (7th Cir. 2006) (citing 
Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001)). “In the absence of a state rule that 
specifically governs the presentment of a constitutional claim,” courts consider four factors 
when assessing whether a habeas petitioner fairly presented his federal claim in state court: 
(1) whether the petitioner relied on federal cases that engage in constitutional 
analysis;  (2)  whether  the  petitioner  relied  on  state  cases  which  apply  a 
constitutional analysis to similar facts; (3) whether the petitioner framed the 
claim in terms so particular as to call to mind a specific constitutional right; and 
(4) whether the petitioner alleged a pattern of facts that is well within the 
mainstream of constitutional litigation.                             

Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001) (citing United States ex rel. Sullivan v. Fairman, 
731 F.2d 450, 454 (7th Cir. 1984)). “If none of the four factors is present and the state has not 
otherwise signaled its satisfaction with the presentment of the federal claim, ‘then this court 
will not consider the state courts to have had a fair opportunity to consider the claim.’” Id. at 
327–28 (quoting Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir. 1997)).  
None of the four factors is present here. Ferguson, who was represented by counsel 
during his direct appeal in state court, cited two U.S. Supreme Court cases in his state appeal 
brief: Miranda v. Arizona, 384 U.S. 436 (1966) and Harris v. New York, 401 U.S. 222 (1971). ECF 
No. 8-1 at 4. Neither of these cases analyze a defendant’s right to confront a witness against 
him. Ferguson’s state cases also do not discuss the confrontation clause or due process. See id. 
Wold v. State, 204 N.W.2d 482 (1973) cites Harris v. New York for the proposition that some 
statements inadmissible under Miranda might still be admissible for impeachment purposes, 
so this case does not apply the confrontation clause to similar facts. See Wold v. State, 204 

N.W.2d 482, 490–91 (Wis. 1973); ECF No. 1-1 ¶ 10.                         
Factors 3 and 4 are also not present here. Ferguson did not frame his claim in state 
court in terms so particular as to call to mind the confrontation clause or due process clause, 
nor allege a pattern of fact within the mainstream of confrontation clause litigation. The state 
appellate brief and court of appeals decision focus narrowly on teasing out prior inconsistent 
statements from hearsay. ECF No. 1-1 ¶¶ 11–12; ECF No. 8-1 at 15–16. Hearsay rules and the 
confrontation clause share common values, but “it is quite a different thing to suggest that the 
overlap is complete and that the  Confrontation Clause is nothing more or less than a 
codification of the rules of hearsay and their exceptions as they existed historically at common 

law.” Cal. v. Green, 399 U.S. 149, 155 (1970). Thus, Ferguson failed to fairly present his federal 
claim in state court.                                                     
Because Ferguson did not give the state courts an opportunity to address his federal 
claim, and because the opportunity to raise that claim appears to have lapsed, see Wis. Stat. 
§ 974.06 and State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994), I am precluded from 
reviewing the merits unless Ferguson can show both cause for and prejudice from the default 
or can demonstrate that the court’s failure to consider the claim would result in a fundamental 
miscarriage of justice. See Lieberman v. Thomas, 505 F.3d 665, 669–71 (7th Cir. 2007); Perruquet 
v. Briley, 390 F.3d 505, 514 (7th Cir. 2004)); see also Bolton v. Akpore, 730 F.3d 685, 696 (7th Cir. 

2013) (citations omitted). Ferguson does not argue cause and prejudice.   
                CERTIFICATE OF APPEALABILITY 
 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States 
District Courts, “[t]he district court must issue or deny a  certificate of appealability when it 
enters a final order adverse to the applicant.” Where a district court denies a habeas petition 
on procedural grounds without reaching the merits of the underlying constitutional claim, the 
petitioner must show both “that jurists of reason would find it debatable whether the petition 
states a valid claim of the denial of a constitutional right, and that jurists of reason would find 
it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 
529 U.S. 473, 484 (2000) (emphasis added). Here, no reasonable jurist would find it debatable 
that Ferguson’s claim is a question of state law, and any federal claim was not fairly presented 
to the state courts. I will therefore deny a  certificate of appealability. 
                          CONCLUSION 
 For all the foregoing reasons, the court GRANTS the respondent’s motion to dismiss, 
ECF No. 7; DENIES the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by 
a person in state custody, ECF 1; and DISMISSES this action. The court also DENIES the 
petitioner a certificate of appealability. The clerk of court shall enter judgment denying the 
petition and dismissing this action. 

 SO ORDERED this 18th day of August, 2025. 

                                     Slum  ©.  Des 
                                    life   □□□ 
                                     United States Magistrate Judge