Donald Maier v. Judy P. Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2151
D ONALD M AIER ,
Petitioner-Appellant,
v.
J UDY P. SMITH,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 17-cv-365 — Barbara B. Crabb, Judge.
____________________
A RGUED SEPTEMBER 25, 2018 — D ECIDED J ANUARY 11, 2019
____________________
Before KANNE , R OVNER , and BARRETT , Circuit Judges.
KANNE , Circuit Judge. Donald Maier appeals the district
court’s denial of his petition for habeas corpus relief from his
conviction under Wisconsin’s stalking statute. Five years after
a jury convicted Maier of threatening two Wisconsin state
court judges, Maier sent two sets of letters to the former ju-
rors—ostensibly seeking their help in his effort to obtain a
governor’s pardon. Several of the jurors found the letters
threatening or disturbing. Maier was charged and convicted

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2 No. 18-2151
under Wisconsin’s stalking statute. After appealing his con-
viction in the Wisconsin state courts, Maier brought this peti-
tion. Because the Wisconsin Court of Appeals’ decision was
not objectively unreasonable, we affirm the district court’s de-
nial of Maier’s petition.
I. BACKGROUND
A jury convicted Donald Maier of threatening two Wis-
consin state court judges in 2006. In November 2011, Maier
mailed a handwritten letter to the men and women who
served as jurors in that case. Due to a clerical error, Maier ob-
tained the names and addresses of the jurors in his case. The
jurors were not expecting his correspondence. The letter’s
opening line announced, “Jury Duty is Not Over.” (all quota-
tions include the letters’ original spelling, capitalization, and
punctuation). The letter informed the jurors that after being
“skrewed” and serving two years in prison, Maier was “going
for a Pardon with the Governor’s office.” The letter included
a handwritten questionnaire inviting the jurors to respond to
a series of “yes” or “no” questions. The first question asked
the jurors if they believed that Wood County “did a Profes-
sional Job? Such as keeping your Name’s and addresses from
someone like [Maier]?” Maier reminded the jurors that they
helped put him in prison, and observed, “Real good people in
there.” Maier’s next question asked the jurors whether he
could give the list of their names and addresses to the “people
[Maier] had to live with?” Maier’s questionnaire then ad-
dressed a litany of injustices he believed he suffered during
his prosecution, trial, and incarceration for the 2006 charges.
Maier emphasized his mistreatment and mentioned his place-
ment in mental institutions.

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No. 18-2151 3
After airing his grievances, Maier finally asked the jurors
whether they believed they did the right thing in sending him
to prison. Maier advised the jurors, “My story will be heard
nation wide soon. Your names could be too. Because you
helped in the Judge Zappen conspiracy[.]” He closed the letter
by encouraging the jurors to “do the right thing” and to mail
their questionnaires to the governor’s Pardon Advisory Board
and a copy to Maier, himself. He assured the jurors, “The
sooner I get justice will be when everybody in the Wisconsin
Rapids police cover-up and the Judge Zappen conspiracy will
get peace ‘No more letters’[.]”
Maier mailed his missive, questionnaire, and pardon ap-
plication to all 13 jurors. Three letters were returned as unde-
liverable. Upon receipt, several of the former jurors immedi-
ately called the police. One of the former jurors and her hus-
band, a police officer, contacted the Wood County Sheriff’s
Department to complain about the letter. She feared that
Maier might retaliate against her for her role in his conviction.
Sheriffʹs Deputy Scott Goldberg drafted a report documenting
the complaint and in his report stated, ʺ[a]fter reading
through the questions, none of the questions are actually
threatening but Officer Machon said he and his wife were ex-
tremely concerned about the questions that were asked and
just the fact that they were being contacted by this subject.ʺ
A local newspaper later ran a one-sentence bulletin noting
that a female juror received a threatening letter from a man on
whose trial she served. The newspaper account caught
Maier’s attention. He clipped the item and included it in a sec-
ond letter to the jurors, dated November 14, 2011. The second
letter opened, “I read the paper too. My letter was not threat-
ening in anyway. I just want to let you see what kind of Idiots

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4 No. 18-2151
you helped put me in prison.” Maier then criticized the judges
involved in the 2006 affair and wrote, “’You have Nothing to
fear from me’[.]” He closed his second letter by encouraging
the jurors to contact his state representative or the governor’s
office, and signed off as “Your friend from Planet of the Apes
Courthouse In downtown Zappenville[.]”
After Maier sent the second letter, the state charged him
with ten counts of stalking in violation of Wisconsin Statute
§ 940.32—one count for each of the jurors who received his
letters.
A new jury convicted Maier on six of the ten counts and
acquitted him on four counts. Maier was sentenced to fifteen
years in prison and twelve years of extended supervision.
Maier moved the trial court for post-conviction relief. His
motion raised a litany of arguments, including the same four
arguments he brings in this petition. The trial court held a
hearing and denied Maier’s motion. He then appealed both
the trial court’s denial of his motion and his conviction to the
Wisconsin Court of Appeals. State v. Maier, No. 2013AP1391–
CR, 2014 WL 1810151 *1 (Wis. Ct. App. May 8, 2014). It af-
firmed Maier’s conviction. Maier then appealed to the Wis-
consin Supreme Court, which denied review of his case.
Maier unsuccessfully petitioned the United States Supreme
Court for a writ of certiorari. Maier v. Wisconsin, 136 S. Ct. 2011
(2016). Maier then petitioned for federal post-conviction re-
view under 28 U.S.C. § 2254. The district court denied his pe-
tition and issued a certificate of appealability on May 2, 2018.
Maier v. Tegels, No. 17-CV-365-BBC, 2018 WL 2049824, at *8
(W.D. Wis. May 2, 2018). This appeal followed.

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No. 18-2151 5
II. A NALYSIS
We review a district courtʹs denial of a habeas petition de
novo. Saxon v. Lashbrook, 873 F.3d 982, 987 (7th Cir. 2017). We
review issues of fact for clear error. Adams v. Bertrand, 453 F.3d
428, 432 (7th Cir. 2006). Maier’s petition for habeas corpus re-
lief is governed by the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA). AEDPA provides that habeas peti-
tions shall not be granted unless the adjudication of the claim
resulted in a decision that was 1) contrary to, or 2) involved
an unreasonable application of Federal law clearly estab-
lished in the holdings of the Supreme Court, or 3) resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254; Harrington v. Richter, 562 U.S.
86, 100 (2011).
We review the Wisconsin Court of Appeals’ opinion,
which was the last reasoned state-court decision on the mer-
its. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “[O]n habeas
review, federal courts are usually limited to a deferential re-
view of the reasonableness, rather than the absolute correct-
ness, of a state court decision.” Mosley v. Atchison, 689 F.3d
838, 844 (7th Cir. 2012) (citing Richter, 562 U.S. at 101–102
(2011)). “For purposes of reasonableness review, ‘a state pris-
oner must show that the state courtʹs ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in ex-
isting law beyond any possibility for fairminded disagree-
ment.’” Id. (quoting Richter, 562 U.S. at 103).
Wisconsin’s stalking statute prohibits,
intentionally engag[ing] in a course of conduct di-
rected at a specific person that would cause a

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6 No. 18-2151
reasonable person under the same circumstances to
suffer serious emotional distress or to fear bodily in-
jury to or the death of himself or herself or a member
of his or her family or household.
Wis. Stat. § 940.32(2)(a). The state must prove the defendant
knew or should have known that one of his or her acts would
likely cause the victim serious emotional distress. Id. at
§ 940.32(2)(b). The acts must have also actually caused the vic-
tim serious emotional distress. Id. at § 940.32(2)(c).
Maier challenges his conviction in four ways. First, Maier
claims he received ineffective assistance of counsel because
his trial counsel failed to introduce evidence that Maier be-
lieves would have negated crucial elements of the Wisconsin
stalking statute. Second, he argues that the Wisconsin stalking
statute—as it was applied to him—violated the First Amend-
ment. Third, Maier contends that the jury instructions given
by the trial court misstated Wisconsin law with respect to the
“true threats” test. According to Maier, the erroneous jury in-
structions failed to hold the state to its burden of proof and
deprived him of his Fourteenth Amendment right to due pro-
cess of law. Lastly, he claims the state presented insufficient
evidence to support his conviction. We review each argument
in turn under AEDPA’s deferential standard of review.
A. Maier Received Effective Assistance of Counsel
Maier argues he received ineffective assistance of counsel
because his trial attorney failed to introduce evidence that
Maier believes would have aided his defense. Specifically,
Maier claims that his trial counsel should have introduced ev-
idence showing that he was genuinely applying for a pardon
and evidence that a few people—including law enforcement
officials—did not find the first letter threatening.

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No. 18-2151 7
ʺTo establish ineffective assistance of trial counsel, a peti-
tioner must show that counsel’s performance was deficient
and that the deficient performance prejudiced his defense.”
Johnson v. Thurmer, 624 F.3d 786, 791 (7th Cir. 2010) (citing
Strickland v. Washington, 466 U.S. 668, 689–92 (1984)). We start
our review assuming that Maier’s counsel “rendered ade-
quate assistance and made all significant decisions in the ex-
ercise of reasonable professional judgment.” Id. (quoting
Strickland, 466 U.S. at 690). To overcome that assumption,
Maier must show that this trial counsel’s representation “‘fell
below an objective standard of reasonableness’ based on pre-
vailing norms of professional conduct.” Id. (quoting Strick-
land, 466 U.S. at 688). “In cases such as this, where counsel has
succeeded in having his client acquitted of at least one of the
charges brought, the presumption is likely to be even more
difficult to rebut.” United States v. Banks, 405 F.3d 559, 568 (7th
Cir. 2005). Maier must also establish that the deficient perfor-
mance prejudiced him by demonstrating that, “there is a rea-
sonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Strickland, 466 U.S. at 694.
In this case, Maier contends that two types of evidence
should have been introduced to help negate the stalking stat-
ute’s mens rea element. First, Maier believes that his attorney
should have introduced testimony from Maier’s neighbor and
documents related to his pardon application. Maier explains
that he discussed his pardon application and the letters with
his neighbor and that the two traveled to Madison together to
pick up the necessary paperwork. According to Maier, his
neighbor could have testified to Maier’s sincerity in seeking
the pardon and his lack of animosity toward the jurors.

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8 No. 18-2151
Similarly, his attorney could have identified documents sub-
stantiating his pursuit of a pardon. Maier believes this evi-
dence could have helped prove that he did not actually intend
for the letters to threaten.
Second, Maier believes that his attorney performed defi-
ciently by not introducing evidence of Wisconsin law enforce-
ment officials’ reactions to the letters. Specifically, Maier
thinks his attorney should have introduced Deputy Gold-
berg’s incident report into evidence. Maier argues this was
relevant to show that at least one person who read the first
letter did not find it threatening. Maier also argues that the
fact that he was not contacted by law enforcement after send-
ing the first letter indicates that letter was not threatening.
The Wisconsin Court of Appeals addressed and rejected
these arguments. With respect to evidence of Maier’s desire
for a pardon, the court determined that Maier was not preju-
diced by his counselʹs failure to put on the evidence, noting
that whether Maier earnestly desired a pardon is irrelevant to
the fact that he should have known that jurors would perceive
his letters as threatening. Further, the court of appeals rea-
soned that Maier could have simultaneously sincerely desired
a pardon and intended to threaten the jurors into supporting
his application.
The court of appeals also rejected Maier’s argument that
his trial counsel performed deficiently by failing to introduce
evidence of law enforcement officials’ reactions to the letters.
The court of appeals observed that the reportʹs significance
paled in comparison to the letters themselves and the jurors’
testimony about the letters’ impact. Further, the court pointed
out that the deputy sheriff’s report only stated that none of
the first letterʹs questions were actually threatening—the

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No. 18-2151 9
report did not characterize the first letter as a whole or both
letters taken together as non-threatening. The district court
similarly remarked that it is hard to know, exactly, how this
evidence would have helped Maier: the impressions of law
enforcement officers provide little perspective on whether
Maier should have known that his letters would have been
perceived as threatening by the jurors.
We agree. As noted above, the statute criminalizes behav-
ior that ʺwould cause a reasonable person under the same cir-
cumstances to suffer serious emotional distress[.]” Wis. Stat.
§ 940.32(2)(a) (emphasis added). Given that the statute fo-
cuses on the impact of Maier’s conduct on those it targeted, it
is hard to understand how failing to introduce evidence of
non-jurors’ impressions could have harmed Maierʹs defense
to such an extent that it changed the outcome. Consequently,
Maier fails to show that the court of appeals’ determination
that he received effective assistance of counsel was unreason-
able.
B. The Court of Appealsʹ First Amendment Analysis was Rea-
sonable
Maier urges that Wisconsin’s stalking statute was uncon-
stitutional as the state applied it against him. Specifically,
Maier argues that his conviction under the statute punished
him for unintentional threats: speech protected by the First
Amendment. In support of his claim, Maier contends the Su-
preme Court has established that the ʺtrue threatsʺ exception
to the First Amendment requires the state to prove that the
speaker actually intends to threaten others. Unfortunately for
Maier, we do not agree that the Supreme Court clearly estab-
lished a standard for the true threats doctrine, and conse-
quently his claim fails.

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10 No. 18-2151
Although the First Amendment generally protects the
right to free speech, this protection does not extend to all
speech. “[T]he First Amendment does not preclude re-
strictions on certain categories of speech having little or no
social value, and threats are one such category.” United States
v. Parr, 545 F.3d 491, 496–497 (7th Cir. 2008) (citing Virginia v.
Black, 538 U.S. 343, 358–59 (2003)). “A statement qualifies as a
‘true threat,’ unprotected by the First Amendment, if it is ‘a
serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.’”
Id. at 497 (quoting Black, 538 U.S. at 359). Black involved a con-
stitutional challenge to Virginiaʹs cross burning statute and
the Supreme Court produced a handful of splintered opinions
attempting to articulate the proper standard.
Before Black, this and other circuits employed an objective
“reasonable person” standard to determine whether speech
constituted a true threat. See id. at 499; see also United States v.
Fuller, 387 F.3d 643, 647 (7th Cir. 2004) (“[T]he objective, rea-
sonable person standard does not tread on free speech.”). Un-
der that approach, courts would ask whether either a reason-
able speaker would expect his words to be interpreted as a
threat or whether a reasonable listener would interpret the
speaker’s words to be a threat. Parr, 545 F.3d at 499. After
Black, however, we and other courts have wondered whether
speech only qualifies as a true threat if the speaker subjec-
tively intended his words to be threatening. Id. at 499–500.
The Wisconsin courts employed a double-objective stand-
ard in Maier’s case—meaning the state had to satisfy the ob-
jective standard from the perspectives of both the speaker and
the listener. Maier contends Black rendered this approach un-
constitutional and that the state should have been required to

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No. 18-2151 11
meet its burden of proof under the subjective standard. Alt-
hough our opinion in Parr recognized that “it is more likely
[after Black] that an entirely objective definition [of true
threats] is no longer tenable[,]” the Supreme Court has not
made that ultimate determination. Id. at 500.
In this habeas corpus action, Maier must show that the
state courtʹs adjudication of his case resulted in a decision that
was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1). Additionally, as the Wisconsin
Court of Appeals noted, a majority of courts that addressed
the issue determined that the objective approach remains vi-
able after Black. See Maier, 2014 WL 1810151 at *5; see also
United States v. Elonis, 730 F.3d 321, 330 (3d Cir. 2013). Because
the Supreme Court has not definitively answered the ques-
tion, Wisconsin’s interpretation of that doctrine is not con-
trary to or an unreasonable application of clearly established
Federal law.
C. The Jury Instructions Held the State to Its Burden of Proof
Maier also argues he was deprived of his right to due pro-
cess because the jury instructions allegedly misstated Wiscon-
sin law and effectively relieved the state of its burden of proof.
Maier contends that the instructions failed to properly articu-
late Wisconsin’s “true threat” standard, as established by the
Wisconsin Supreme Court in State v. Perkins, 626 N.W.2d 762,
770 (Wis. 2001).
A defendant’s right to due process guarantees that the
state must prove every element of the alleged crime beyond a
reasonable doubt. Middleton v. McNeil, 541 U.S. 433, 437
(2004). A jury instruction violates due process if it fails to give

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12 No. 18-2151
effect to this requirement. Id. However, habeas precedent
places an especially heavy burden on a defendant seeking to
show constitutional error from a jury instruction that quotes
state law. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Bur-
ris v. Smith, 819 F.3d 1037, 1041 (7th Cir. 2016). “[N]ot every
ambiguity, inconsistency, or deficiency in a jury instruction
rises to the level of a due process violation.” Middleton, 541
U.S. at 437. Maier must show both that the instruction was
deficient and that “there was a reasonable likelihood that the
jury applied the instruction in a way that relieved the State of
its burden of proving every element of the crime beyond a
reasonable doubt.” Waddington, 555 U.S. at 190 (internal quo-
tations omitted). We must determine, “whether the ailing in-
struction by itself so infected the entire trial that the resulting
conviction violates due process.” Estelle v. McGuire, 502 U.S.
62, 72 (1991).
In Perkins, the Wisconsin Supreme Court addressed jury
instructions administered in the trial of a man accused of
threatening a judge in violation of state law. See Wis. Stat.
§ 940.203. Under that statute, the state bore the burden of
proving the defendant threatened to cause bodily harm to a
judge. See Perkins, 626 N.W.2d at 771. The Wisconsin Supreme
Court deemed the jury instructions in that case insufficient
because they failed to define “threaten[ing] to cause bodily
harm.” Id. at 772. Specifically,
the jury was not instructed that it had to apply an
objective test in the first element to determine
whether the defendant had ‘threatened to cause
bodily harm,’ that is, that a speaker would reasona-
bly foresee that a listener would reasonably inter-
pret the statement to be a serious expression of a
purpose to inflict bodily harm, as distinguished

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No. 18-2151 13
from hyperbole, jest, innocuous talk, expressions of
political views, or other similarly protected speech.
Id.
The Perkins court held that without language explaining
the statuteʹs use of the narrower, legal definition of
“threaten,” a reasonable likelihood existed that the jury inter-
preted and applied the given instruction to the detriment of
Perkins’ right to free speech. Id. at 773.
According to Maier, a similar thing happened here. He
pins the jury instructions’ deficiency on their definition of “se-
rious emotional distress.” The instructions quoted the stalk-
ing statute and explained that a defendant causes the victim
to experience serious emotional distress if his course of con-
duct caused the victim to “feel terrified, intimidated, threat-
ened, harassed, or tormented.” Wis. Stat. § 940.32(1)(d). Maier
claims that this definition of serious emotional distress in the
instructions effectively allowed the jury to convict him for
generally threatening (but constitutionally protected) lan-
guage. He insists the instructions should have included the
Perkins language distinguishing a serious expression of a pur-
pose to inflict bodily harm from “hyperbole, jest, innocuous
talk, expressions of political views, or other similarly pro-
tected speech.” Perkins, 626 N.W.2d at 772.
The Wisconsin Court of Appeals disagreed. It explained
that Perkins required that the state must prove true threats on
an objective standard from the perspective of both the listener
and the speaker. See Maier, 2014 WL 1810151 at *4. The court
noted that the instructions told the jury to find Maier guilty
only if his letters would have caused a reasonable person in
the position of the 2006 jurors to experience serious emotional
distress and explained that this satisfied the objective

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14 No. 18-2151
standard from the jurors’ perspective. The court also observed
that the instructions told the jury to find Maier guilty only if
he knew or should have known that his letters would have
caused the 2006 jurors to suffer serious emotional distress.
Thus, the court determined that the instructions administered
in this case met Perkinsʹ demand by applying the objective ap-
proach to both the speaker (Maier) and the listeners (the 2006
jurors).
Lastly, as to Maierʹs argument that he was entitled to an
instruction with verbiage from the Perkins decision, the court
of appeals distinguished between Wisconsin’s stalking statute
and the statute at issue in Perkins, noting that the Perkins opin-
ion itself acknowledged that the true threats test required
modification for different statutes. See Perkins, 626 N.W.2d. at
770.
We agree that the jury instructions accurately stated the
elements of the crime. With respect to the true threats stand-
ard, the instructions included the essential elements of the
double objective standard articulated by the Wisconsin Su-
preme Court. In Perkins, the Wisconsin Supreme Court ex-
pressed concern that jury instructions did not inform the jury
that it had to apply an objective test to determine whether the
defendant in that case threatened a judge. Perkins, 626 N.W.2d
at 772. In this case, the jury instructions included the double
objective standard demanded by Perkins. Although the jury
instructions did not mirror the language used in Perkins, the
court of appeals made a reasonable determination that the
given instructions provided a sufficient, albeit modified, ar-
ticulation of the Perkins true threats standard in the context of
the stalking statute. Because Perkins is not an unreasonable
application of clearly established Supreme Court precedent,

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No. 18-2151 15
and because the jury instruction was consistent with Perkins,
the jury instructions did not violate due process.
D. The State Presented Sufficient Evidence to Convict Maier
Finally, Maier contends that, even if an objective-intent
standard is permissible, the state produced insufficient evi-
dence to support his conviction under that standard. He ar-
gues the court of appeals’ opinion fails in three main ways.
First, the court of appeals failed to apply the sufficiency stand-
ard with explicit reference to the Perkins standard, and its
opinion is therefore contrary to Jackson v. Virginia, 443 U.S.
307, 316 (1979). Second, the court of appeals only considered
isolated passages from Maier’s letters to the jurors and not
“all of the evidence at trial” that should have been considered.
Lastly, Maier attempts to argue that the court of appeals’
opinion relied on an unreasonable reading of his letters. All
these arguments fail.
Fourteenth Amendment due process requires that the
state must present sufficient evidence to prove each element
of an alleged crime. See Jackson, 443 U.S. at 326. The crime’s
substantive elements are defined by state law. Id. at 324 n.16.
Sufficiency of the evidence is reviewed under a different
standard on federal habeas review than on direct appeal be-
fore the state court. “[T]he state appellate court determines
whether any rational trier of fact could have found the evi-
dence sufficient; … a federal court may only overturn the ap-
pellate courtʹs finding of sufficient evidence if it was objec-
tively unreasonable.” Saxon, 873 F.3d at 988. To warrant relief,
the state court’s application of federal law “must be ‘some-
thing like lying well outside the boundaries of permissible
differences of opinion.’” Id. at 987 (quoting Jackson v. Frank,
348 F.3d 658, 662 (7th Cir. 2003)).

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16 No. 18-2151
Maier contends that the court of appeals failed to specifi-
cally find that the evidence satisfied the Perkins standard. His
argument here is hard to follow. We understand his argument
to be similar to his objection to the jury instructions: the court
of appeals failed to apply the “true threats” language used in
Perkins, and the evidence presented could not satisfy the
standard articulated in that case. However, we believe the
court of appeals reasonably applied Perkins’ requirements.
Maier might also be arguing that, because Perkins violates Su-
preme Court precedent, the court of appeal’s sufficiency of
the evidence analysis was fatally flawed. In any event, we
conclude that the court of appeals’ analysis was not objec-
tively unreasonable.
The court of appeals’ decision effectively applied the suf-
ficiency standard in this case with reference to each of the el-
ements of the stalking statute—including Perkins’ double ob-
jective standard. Moreover, the opinion points to evidence
that satisfies the objective standard from the perspective of a
reasonable listener. The court of appeals’ opinion identified
specific language in both letters and gave examples of how
that evidence supported the jury’s finding that “a reasonable
person in the position of the 2006 jurors would have under-
stood the letters to be threatening.” State v. Maier, 2014 WL
1810151 at *9.
And the court of appeals’ opinion implicitly but neces-
sarily found that the evidence satisfied the objective standard
from Maier’s perspective. The court held that the jury could
have reasonably determined that each letter was inde-
pendently threatening. Id. at *10. As the state points out,
Maier sent a second letter to the jurors after learning from the
newspaper that at least one of the jurors found his first letter

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No. 18-2151 17
to be threatening and called law enforcement. This suggests
that at least with respect to the second letter, Maier was on
notice that the jurors would suffer serious emotional distress
because of his communications. Significantly, one of Maier’s
questions in the first letter—the question asking jurors
whether they thought that Wood County acted professionally
by distributing their names and addresses to Maier—indi-
cates that Maier likely knew he should not be writing the ju-
rors in the first place. And even aside from the content of
Maier’s letters, consider, for example, what his very act of
mailing the first letter communicated to the jurors: I know
who you are, I know you helped put me behind bars, and I
know where you live. Likewise, and without considering the
content of Maier’s written words, his second letter communi-
cated that he knew one of the jurors complained and that he
was paying attention. The court of appeals reasonably con-
cluded that the state presented sufficient evidence to support
Maier’s conviction.
Maier also claims the court of appeals failed to consider all
the evidence available at trial, and instead only focused on
isolated passages in his letters. He argues that, when the to-
tality of the evidence is considered, the letters could have
been viewed as nonthreatening. The Wisconsin Court of Ap-
peals’ opinion focused on whether the facts presented at trial
justified the juryʹs determination; it likewise focused on the
portions of the record that support the juryʹs finding. This was
appropriate because the court of appeals was required to view
all the evidence in a manner favorable to the state and the con-
viction. See State v. Poellinger, 451 N.W.2d 752 (Wis. 1990); see
also McDaniel v. Brown, 558 U.S. 120, 133 (2010). This focus
does not, as Maier argues, ignore evidence more favorable to
him. Instead, the court acknowledged—but rejected—Maier’s

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18 No. 18-2151
characterization of the letters. See Maier, 2014 WL 1810151 at
*8-9. None of Maier’s alternative explanations for his letters
provides so convincing an explanation that we deem the court
of appeals’ opinion to be objectively unreasonable.
Lastly, Maier attempts to argue that the court of appeals’
opinion reflects an unreasonable interpretation of his letters.
Consequently, he contends the opinion provides an unrea-
sonable determination of the facts in light of the evidence pre-
sented. See 28 U.S.C. § 2254(d)(2). Again, the court of appeals
properly reviewed the record in a light most favorable to the
prosecution and conviction. The court’s opinion was not un-
reasonable because it failed to construe the evidence as Maier
wished—in a light most favorable to him. See Maier, 2014 WL
1810151 at *9. Given this standard, we believe that the court’s
opinion provided a reasonable application of this case’s facts.
III. CONCLUSION
Based on the foregoing, we believe the Wisconsin Court of
Appeals did not unreasonably reject Maier’s numerous
claims. Maier failed to demonstrate that his conviction under
the stalking statute was contrary to, or involved an unreason-
able application of, clearly established Federal law. Nor has
he demonstrated that the decision was based on an unreason-
able determination of the facts in light of the evidence pre-
sented at trial. AFFIRMED.

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