Full opinion text
DECISION AND ORDER ADELMAN, District Judge. Petitioner Kathleen A. Braun seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of her Wisconsin state court conviction. On December 20, 1976, after a jury trial in Milwaukee County Circuit Court, Braun was convicted of first-degree murder as a party to the crime and sentenced to life imprisonment. In her petition for habeas corpus petitioner alleges that in the homicide trial her federal constitutional rights were violated in three respects: (1) she was denied the right to a public trial when the judge excluded a member of the public from the courtroom during trial; (2) she was denied due process because the prosecutor misrepresented to her counsel and the jury the plea agreement with the state’s principal witness, improperly cross-examined her, and made an improper statement on rebuttal; and (3) she was denied the right to confront witnesses against her when her counsel’s cross-examination of two state witnesses was improperly restricted and when the court refused to give certain requested jury instructions. I. FACTUAL BACKGROUND In December 1973 Earl Jeffrey Seymour was arrested for the murder of a Milwaukee drug trafficker, William Weber. Weber had been shot three times, his arms severed at the wrists and his body disposed of in Cook County, Illinois. Seymour entered into an agreement with the district attorney pursuant to which he pled guilty to second-degree murder and agreed to testify against petitioner and her husband, Tim Braun. The two primary witnesses at petitioner’s trial were Seymour and petitioner. Seymour, a drug dealer and user, testified that Weber threatened to stop supplying drugs to him and the Brauns. As a result, he and the Brauns decided to kill Weber. Seymour testified that on November 12, 1973 Weber went to an apartment to collect drug money. Petitioner and Seymour were at the apartment. Seymour said he led Weber into a bedroom where Kathleen Braun waited; Seymour then shot Weber once in the back and, after Weber fell to the floor, once in the heart. According to Seymour petitioner then took the gun and shot Weber in the head to make sure he was dead. Petitioner and Seymour placed the body in petitioner’s car and took it to Seymour’s father’s home in Racine. Thereafter, the body was dismembered and transported to Illinois. At trial, Seymour and the prosecutor described Seymour’s plea agreement as involving a state recommendation of incarceration for Seymour. The prosecutor, however, had advised Seymour prior to petitioner’s trial that the state’s position regarding incarceration would be reconsidered after the trial. The State did reconsider, and took no position regarding incarceration at his sentencing. Seymour was sentenced to probation. Petitioner testified at her trial and denied participation in the killing and dismemberment of Weber. During the trial the court observed that a Mr. Mane, who had been on the venire panel but had been excused after voir dire, was present in the courtroom watching the trial. Apparently, he had been excused from service on the jury because he said that he was friendly to the defense. The court excluded him from the courtroom during the trial. Additional facts will be set forth in my discussion of the issues in the case. II. POST-CONVICTION HISTORY On December 20, 1976, petitioner was sentenced to life imprisonment for the homicide conviction. Under Wis.Stat. § 974.02 a Wisconsin defendant may, prior to appealing, move the trial court to address claims of error. See Howard B. Eisenberg, Post-Conviction Remedies in the 1970s, 56 Marq.L.Rev. 69 (1972). If the alleged error is one that the trial court could have corrected by granting a new trial, a motion for a new trial under § 974.02 is a necessary predicate for an appeal. Thiesen v. State, 86 Wis.2d 562, 564, 273 N.W.2d 314 (1979). On August 4, 1977, pursuant to § 974.02, petitioner filed a post-conviction motion alleging various trial errors. On December 22, 1977, before the trial court decided the motion, petitioner escaped from prison. On May 1, 1978, the trial judge orally dismissed her motion. Petitioner did not appeal the order of dismissal. After petitioner was involuntarily returned to custody in 1984, she filed a motion under Wis.Stat. § 974.06 challenging her conviction on constitutional grounds. Under § 974.06 a defendant may collaterally challenge a conviction after the time to appeal has expired. Section 974.06 is the Wisconsin equivalent of the federal habeas corpus statute; it was taken directly from 28 U.S.C. § 2255. Wis.Stat.Ann. § 974.06 cmt. L.1969. Braun’s § 974.06 motion included some claims she had included in her § 974.02 motions — including her present claims regarding her rights to a public trial and to confront witnesses — and one new claim of prosecutorial misconduct based on the failure to disclose the terms of Seymour’s plea bargain.. The circuit court denied petitioner’s § 974.06 motion, and petitioner appealed. Prior to deciding the case the court of appeals directed that an evidentiary hearing be held to determine the reasons underlying Judge Raskin’s dismissal of petitioner’s § 974.02 post-conviction motion. In response, the parties entered into the following stipulation, obviating the need for the hearing: The state ... had filed a written motion to dismiss Ms. Braun’s post-conviction motions based upon her escape from Taycheedah Correctional Institution in December 1977. Judge Raskin heard the motion on May 1, 1978. The sole basis presented by the state for dismissal of Ms. Braun’s motions was her escape. At no point during the proceeding did the state argue the underlying merits of Ms. Braun’s motions. Judge Raskin orally granted the state’s motion to dismiss based upon Ms. Braun’s escape. At no time during the proceeding or when setting forth his order did Judge Raskin ever discuss or purport to decide the underlying merits of Ms. Braun’s motions, relying instead solely upon her escape as the basis for dismissal. While dismissing Ms. Braun’s motions, Judge Raskin orally ordered that, if Ms. Braun returned within sixty days, he would set aside the dismissal, reopen her motions, hear arguments on the merits of those motions and proceed to decide those motions on their merits. (Answer, Ex. D, App.10-11.) The court of appeals affirmed the denial of petitioner’s § 974.06 motion, holding that Judge Raskin’s dismissal of petitioner’s § 974.02 motion barred her from raising her claims in a subsequent § 974.06 motion. See State v. Braun, 178 Wis.2d 249, 504 N.W.2d 118 (Ct.App.1993). The supreme court granted review. Petitioner did not contest the dismissal of her initial § 974.02 motion based on her escape. Rather, she argued that the dismissal of the § 974.02 motion did not bar collateral relief under § 974.06 after she was returned to custody. Petitioner argued that Judge Raskin’s dismissal was not on the merits and did not finally adjudicate the issues raised. Petitioner also asserted, relying on Bergenthal v. State, 72 Wis.2d 740, 242 N.W.2d 199 (1976) (hereinafter “Bergenthal”), that even if Judge Raskin’s decision was on the merits, an unappealed § 974.02 decision did not bar relief in a subsequent § 974.06 motion. In addition, petitioner argued that, in any case, one of her prosecutorial misconduct, claims had not been raised in her § 974.02 motion and thus was not adjudicated by the dismissal of that motion. The supreme court declined to consider the merits of petitioner’s claims and held that (1) the dismissal of the § 974.02 motion based on her escape finally adjudicated the claims raised in that motion so as to prevent petitioner from raising them in a subsequent § 974.06 motion; and (2) with respect to the claim not raised in the original § 974.02 motion she had failed to allege a “sufficient reason” pursuant to Wis. Stat. § 974.06(4) for not previously alleging it, and, therefore, based on the court’s retroactive application of another decision issued the same day, State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), review of that claim was also barred. See State v. Braun, 185 Wis.2d 152, 516 N.W.2d 740 (1994) (hereinafter “Braun”). III. PROCEDURAL DEFAULT Federal habeas corpus petitioners who fail to comply with a state procedural rule while exhausting their claims in state court may be barred from raising those claims in federal court. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, non-compliance with a state procedural rule cannot bar federal review unless the state rule is “adequate to prevent federal collateral review.” Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.), reh’g denied, 108 F.3d 144 (7th Cir.1997). A state rule is adequate to prevent federal review only if it was a “firmly established and regularly followed state practice” at the time the defendant allegedly failed to follow it. James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). The rule must have been in place and enforced at the time of the alleged non-compliance. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). A rule of procedure is not adequate to prevent federal collateral review when the defendant could not be “deemed to have been apprised of its existence” at the time the rule was broken. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); accord Moore v. Parke, 148 F.3d 705, 709 (7th Cir.1998) (federal courts “barred from reviewing a state court decision resting on a procedural ground only if the petitioner could have known of the procedural requirement and yet still failed to follow it”). Thus, petitioner’s claims are not reviewable if the state procedural rules that she failed to follow were in place at the time she violated them. The state supreme court invoked two separate procedural rules to bar review of petitioner’s claims: (1) the dismissal of petitioner’s § 974.02 motion because of her escape was a final adjudication of the claims raised in that motion and barred § 974.06 review of them, Braun, 185 Wis.2d at 165, 516 N.W.2d 740; and (2) Escalona-Naranjo barred review of the prosecutorial misconduct claim because it could have been, but was not, raised on direct appeal, and Braun failed to establish a “sufficient reason” for not raising it earlier, id. A. Adequacy of Procedural Rule That Dismissal of § 974.02 Motion Based on Escape Precluded § 974.06 Review By the terms of Wis.Stat. § 974.06 itself, collateral review of a conviction under that section is unavailable in certain cases. According to subsection 974.06(4), [a]ll grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for suf-fícient reason was not asserted or was inadequately raised in the original, supplemental or amended motion. In Braun, the Wisconsin Supreme Court ruled that Judge Raskin’s dismissal of petitioner’s § 974.02 motion because of petitioner’s escape “finally adjudicated,” with res judicata effect, all claims raised therein. Respondent argues both that the supreme court’s ruling and other clauses of subsection 974.06(4) constitute adequate bases for denying federal court review. First, respondent argues that by escaping petitioner “knowingly, voluntarily and intelligently waived” her claim for relief in the § 974.02 proceedings, precluding § 974.06 relief under the second sentence of subsection (4). (See Resp’t’s Br. in Opp’n at 16-20.) However, neither before petitioner’s escape nor even after Braun is there a rule in Wisconsin that by escaping a defendant waives her claims for relief. See State v. John, 60 Wis.2d 730, 734, 211 N.W.2d 463 (1973); see also Braun, 185 Wis.2d at 161-62 n. 3, 516 N.W.2d 740. In John the court noted only that [t]he difficulty with the ground of waiver is the element of knowledge of the collateral effect of an escape. True, an escapee knows he has become a fugitive from justice — this is a consequence of his act; but is it foreseeable that as a natural result that all pending litigation will be dismissed? Id. Thus, when petitioner escaped no rule existed in Wisconsin that a defendant who escaped waived the right to direct or collateral review of her claims. Second, respondent asserts, based on State v. Brown, 96 Wis.2d 238, 291 N.W.2d 528 (1980), that the denial of petitioner’s request for § 974.06 relief was justified by the “law of the case” doctrine, which requires that “issues previously considered on direct appeal cannot be reconsidered on a motion under sec. 974.06, Stats.” State v. Brown, 96 Wis.2d 238, 241, 291 N.W.2d 528 (1980); see State v. Witkowski, 163 Wis.2d 985, 473 N.W.2d 512 (Ct.App.1991). Petitioner’s case, however, is clearly distinguishable from Brown because petitioner’s § 974.02 claims were never reviewed on direct appeal. No appeal was taken. Third, respondent contends that Judge Raskin’s denial of petitioner’s § 974.02 motion was itself a final adjudication barring § 974.06 review under the second sentence of subsection 974.06(4). Petitioner argues, though, that prior to Braun an issue was “finally adjudicated” only when decided on the merits. In support of her argument petitioner cites Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (one justification for fugitive dismissal rule is avoidance of decision on merits); Hall v. Alabama, 700 F.2d 1333, 1335 (11th Cir.1983) (dismissal of appeal without opinion upon appellant’s escape cannot be viewed as decision on merits); Young v. Warden, Md. Penitentiary, 383 F.Supp. 986, 990-91 (D.Md.1974) (allegation of error in post-conviction motion not finally litigated until court rules on merits of the allegation), aff'd, 532 F.2d 753 (4th Cir.1976); State v. Wills, 69 Wis.2d 489, 230 N.W.2d 827 (1975) (appeal of successive post-conviction motions proper where there was no written decision of trial court on prior motion from which appellate court could determine what issues had been considered and actually decided; doubts must be resolved in favor of defendant); Estate of Pfaff, 41 Wis.2d 159, 163 N.W.2d 140 (1968) (prior dismissal of premature appeal not res judicata because it did not reach merits); Aiello v. State, 166 Wis.2d 27, 479 N.W.2d 178 (Ct.App.1991) (unappealed procedural dismissals not res judicata because merits not reached); and In re Protective Placement of J.S., 144 Wis.2d 670, 674 n. 2, 425 N.W.2d 15 (Ct.App.1988) (where prior appeal dismissed as moot, prior judgment not law of case). Thus, petitioner asserts, prior to both her escape and the Braun decision dismissal of a pending motion based on escape did not “purport to decide the underlying merits,” (Answer, Ex. D, App.10), and did not finally adjudicate the issues. Respondent replies by citing language in John stating that the effect of a trial court’s dismissal of pending motions because of a defendant’s escape is “on the merits.” John, 60 Wis.2d at 732, 211 N.W.2d 463. In John, the court explored various broad justifications for dismissing a pending proceeding based on the defendant’s escape, but ultimately rested its decision on the narrow ground that the convict failed to testify, preventing the court from deciding the merits of the case: Here, the convict was unavailable to give testimony on his own behalf on a petition in which he sought relief from the court. We understand John is now incarcerated in a prison in Illinois for an offense committed while a fugitive from justice; but this situation, if important, did not exist on the day of his hearing. In failing to respond to the subpoena and give testimony when he could have, John prevented the trial court from deciding the merits of his case and thus obstructed the administration of justice. A defendant or plaintiff who fails to produce evidence, when he is ordered to do so, is in default and the case may go against him on this ground. In Hauer v. Christon (1969), 43 Wis.2d 147, 168 N.W.2d 81, the court recognized the inherent power of a court to dismiss a defendant’s answer or a plaintiffs complaint when the party was not prepared for trial or when there was a failure to produce evidence ordered to be produced, on the ground that the necessity of the court to maintain the orderly processing of cases and the dispatch of justice required it. We think the analogy is applicable here. When a convict escapes and puts himself in a position where he cannot aid the court which needs his testimony in the determination of his petition, he has frustrated the administration of justice, made it impossible for the court to consider his petition, and has abandoned his application for relief on the merits. Id. at 735-36, 211 N.W.2d 463. Thus, although John did not make it entirely clear what rule it was establishing, the most reasonable interpretation of the case was that dismissals based on escape were on the merits only where the escape prevented the defendant from giving necessary testimony. At a minimum, John fell short of announcing a rule that all dismissals based on escape were on the merits. Respondent alternatively argues that Judge Raskin’s dismissal was on the merits because courts have always had inherent authority to dismiss cases based on the improper conduct of a party, and because Wis.Stat. § 805.03 empowers courts to dismiss “[f]or failure of any claimant to prosecute” and provides that such a dismissal “operates as an adjudication on the merits.” See Lawrence v. MacIntyre, 48 Wis.2d 550, 556, 180 N.W.2d 538 (1970) (court has inherent authority to dismiss where party guilty of “undue delay or inexcusable neglect in advancing the case”). Respondent suggests that the inherent authority of courts to dismiss for failure to prosecute was itself a rule of procedure in place prior to petitioner’s escape and thus was an adequate ground for barring federal review. Section 805.03, however, is a rule of civil procedure. No rule was in effect before or after Braun that § 805.03 authorized dismissal of a motion under § 974.02, which governs criminal cases. See Braun, 185 Wis.2d at 167, 516 N.W.2d 740. Further, no rule was in effect before Braun that the inherent authority of courts to dismiss cases under certain circumstances meant that dismissals based on escape were dismissals on the merits. If such a rule had been in effect the Wisconsin Supreme Court would not have upheld the dismissal in John on the narrow ground that the defendant was unavailable to testify. Thus, prior to the time Judge Raskin dismissed petitioner’s § 974.02 motion based on her escape, such a decision would not have been considered to have been on the merits. Further, before Braun there was no clear rule that the dismissal of a claim not on the merits could be a final adjudication having res judicata effect. Generally, under prior Wisconsin law a dismissal not based on the merits returned the parties to the position they were in prior to the dismissal. See Pick v. Pick, 245 Wis. 496, 499, 15 N.W.2d 807 (1944) (“dismissal of an appeal for failure to comply with statutory requirements remits the parties and the case to prior existing conditions, leaving unimpaired the statutory right to take and perfect an appeal at any time within the period provided by law”). But even if Judge Raskin’s order had the effect of a dismissal on the merits, prior to Braun no procedural rule existed that an unappealed dismissal on the merits finally adjudicated a defendant’s claims, barring subsequent § 974.06 relief. Indeed, prior to Braun — and thus both at the time petitioner escaped and the time she brought her § 974.06 motion — the question of whether an unappealed dismissal of a claim raised in a § 974.02 motion finally adjudicated the claim was controlled by Bergenthal. In Bergenthal, the defendant at trial requested an in camera inspection of allegedly exculpatory materials possessed by the state. The court reviewed the materials, found nothing exculpatory and sealed them in an envelope for appeal purposes. On motions after verdict the defendant raised one hundred claims of error, including the trial court’s failure to disclose the materials in the envelope. The trial court again reviewed the documents in camera and again ruled that they were not exculpatory. Bergenthal appealed, raising ninety-nine of the claims of error but not the trial court’s refusal to disclose the contents of the envelope. The Wisconsin Supreme Court affirmed Bergenthal’s conviction. State v. Bergenthal, 47 Wis.2d 668, 178 N.W.2d 16 (1970). Bergenthal then brought a motion under § 974.06 challenging the trial court’s failure to disclose the requested material. The supreme court rejected the state’s argument that Bergen-thal was precluded from raising the issue and, ruled that “[e]ven though the issue might properly have been raised on appeal, it presents an issue of significant .constitutional proportions and, therefore, must be considered in this motion for post-conviction relief.” Bergenthal, 72 Wis.2d at 748, 242 N.W.2d 199; see also Loop v. State, 65 Wis.2d 499, 502, 222 N.W.2d 694 (1974) (defendant entitled to pursue § 974.06 collateral relief where no direct appeal filed). Prior to Braun, therefore, an unappealed dismissal of a § 974.02 motion did not finally adjudicate the issues raised in that motion and did not bar subsequent collateral relief under § 974.06. For the foregoing reasons, I find that at the time petitioner escaped, Wisconsin did not have a procedural rule that an unappealed trial court dismissal of a post-conviction motion based on escape constituted a final adjudication of a defendant’s claims barring the defendant from raising the claims in a subsequent § 974.06 proceeding. In sum, John was narrowly decided and did not deal with the effect of an unappealed dismissal of a § 974.02 motion on a subsequent motion for collateral relief after petitioner was returned to custody. Bergenthal did address the effect of a § 974.02 dismissal in a collateral proceeding and held that, if unappealed, the dismissal did not bar collateral relief. These were the cases in place at the time petitioner escaped and at the time her § 974.02 motion was denied. She could not then have been apprised of the procedural rule invoked by the Supreme Court of Wisconsin in Braun. The post-conviction history of this case reinforces the conclusion that at the time petitioner escaped there was no “firmly established and regularly followed state practice” equating dismissal based on escape with final adjudication. See James, 466 U.S. at 348-51, 104 S.Ct. 1830. When petitioner brought her § 974.06 motion in circuit court, the state initially did not even raise the argument that as a- consequence of her escape her claims had been finally adjudicated. Braun, 178 Wis.2d at 254 n. 1, 504 N.W.2d 118. If the rule that a dismissal based on an escape was a final adjudication had been firmly established, the state would have brought it to the circuit court’s attention. Further, if when petitioner escaped the procedural rule invoked by the Wisconsin Court of Appeals and Wisconsin Supreme Court to bar her § 974.06 motion was regularly followed, neither court would have found it necessary to write a substantial opinion justifying its ruling, nor would there even have been a reason for the Wisconsin Supreme Court to have granted her petition for review. This case is therefore unlike Wood v. Hall, 130 F.3d 373, 378 (9th Cir.1997), cited in respondent’s supplemental brief. The Wood court held that Oregon’s fugitive dismissal rule constituted an adequate ground for barring federal habeas review only because “Oregon’s fugitive disentitlement rule was clear, consistently applied and well-established at the time Wood fled from the state.” Id. at 378. In contrast, the rule invoked by the Wisconsin Supreme Court in Braun to bar review of petitioner’s § 974.06 claims was not established at all when petitioner escaped. In fact, the supreme court created the rule in the Braun case. This analysis is not intended to diminish the significance of petitioner’s escape. By escaping petitioner both broke the law and flouted authority. The question before me, however, is not whether petitioner’s escape should be condemned; of course, it should. Rather the question is what the state of the law was at the time she escaped. Again, for the reasons stated, I conclude that at the time petitioner escaped and at the time her § 974.02 motion was dismissed, no procedural rule was in place that the dismissal of her motion finally adjudicated all of her claims so as to bar consideration of them in a subsequent motion for collateral relief. Therefore, the rule invoked by the Wisconsin Supreme Court to bar state court review of the merits of her claims is not adequate to bar federal review of the merits of those claims. B. Adequacy of Procedural Rule That Failure to Raise Claim on Direct Appeal Barred Relief Under § 974.06 Absent “Sufficient Reason.” I now address the Wisconsin courts’ handling of the prosecutorial misconduct claim not raised in petitioner’s § 974.02 motion. Prior to the supreme court’s decisions in Escalonar-Naranjo and Braun, the failure to raise an issue on direct appeal did not prevent a defendant from raising the issue in a § 974.06 motion. Bergenthal, 72 Wis.2d at 748, 242 N.W.2d 199 (§ 974.06 review not barred “[e]ven though the issue might properly have been raised” on direct appeal). A defendant was barred from raising an issue under § 974.06 only if she had omitted it from a prior § 974.06 motion. State v. James, 169 Wis.2d 490, 494, 485 N.W.2d 436 (Ct.App.1992). Petitioner had not filed a prior § 974.06 motion. The lower courts in Wisconsin consistently followed Bergenthal for eighteen years. See, e.g., id.; State v. Coogan, 154 Wis.2d 387, 453 N.W.2d 186 (Ct.App.1990); State v. Klimas, 94 Wis.2d 288, 288 N.W.2d 157 (Ct.App.1979). Not until Es-calona-Naranjo, decided the same day as Braun, did the Wisconsin Supreme Court overrule Bergenthal and reinterpret the successive petitions provision of § 974.06(4) to require a showing of “sufficient reason” for not raising claims in a direct appeal or § 974.02 motion. The Wisconsin Supreme Court applied Escalo-nar-Naranjo to bar review of petitioner’s prosecutorial misconduct claim because petitioner had not shown sufficient reason for not having raised it in her § 974.02 motion. The supreme court expressly tied its decision to dismiss Braun’s new prosecutorial misconduct claim to its decision in Escalona-Naranjo to overrule Bergenthal. Braun, 185 Wis.2d at 166, 516 N.W.2d 740 (“we are today overruling Bergenthal”). Under Liegakos, 106 F.3d 1381, a Wisconsin court’s retroactive application of Esca-lonar-Naranjo cannot serve as an adequate state law ground for finding procedural default. The procedural rule invoked by the Wisconsin Supreme Court to bar review of petitioner’s prosecutorial misconduct claim was not in place when she omitted it from her § 974.02 motion. IV. STANDARD OF REVIEW OF PETITIONER’S CLAIMS Respondent contends that because petitioner’s application for habeas corpus was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the new law’s standard of review governs petitioner’s claims. AEDPA itself does apply to Braun’s petition, based on its filing date of April 21, 1997. AEDPA went into effect on April 24, 1996, and its amendments to § 2254 apply to all habeas petitions filed on or after that date. See Lindh v. Murphy, 521 U.S. 320, 322-23, 335, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (at 335, 117 S.Ct. 2059 stating that the amendments “unquestionably apply ... to cases filed after the Act took effect”); Schaff v. Snyder, 190 F.3d 513, 521 (7th Cir.1999) (AEDPA “applies to this case because Mr. Schaff filed his federal habeas petition after the effective date of AEDPA, April 24, 1996”). Whether AEDPA’s new standard of review applies is another matter, however. AEDPA established a higher standard for habeas review by federal courts of state court convictions. Prior to AEDPA, federal courts reviewed plenarily a state court’s application of federal law to the particular facts of a case and could rely on any federal precedent. See Abrams v. Barnett, 121 F.3d 1036, 1037-38 (7th Cir.1997). AEDPA amended the law “by requiring federal courts ‘to give greater deference to the determinations made by state courts than they were required to do under the previous law.’ ” Bowles v. Berge, 999 F.Supp. 1247, 1254 (E.D.Wis.1998) (quoting Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir.1996)). As amended by AEDPA, the habeas statutes now allow federal courts to grant habeas relief only if the state courts’ denial of relief “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d); see Schaff, 190 F.3d at 522 (“We may no longer rely upon our own precedent or that of other circuit courts of appeals to grant the writ. A petitioner must have a supreme court case to support his claim, and that supreme court decision must have clearly established the relevant principle as of the time of his direct appeal.” (citation omitted)). By the terms of the statutory amendments themselves, however, the new standard applies only to a “claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d); see also Moore, 148 F.3d at 708 (“A prerequisite for applying [§ 2254(d)] is that the state court adjudicated the issue before us on the merits.”). Petitioner’s federal constitutional claims were not “adjudicated on the merits” in state court. Respondent concedes that for purposes of § 2254(d) “neither the Wisconsin Court of Appeals nor the Wisconsin Supreme Court reached the merits of petitioner’s underlying claims because her procedural default made it unnecessary to do so.” (Resp’t’s Br. in Opp’n at 3.) The Wisconsin Supreme Court held that petitioner forfeited her right to review on the merits because her § 974.02 motion was dismissed as the result of her escape. The disposition of the last state court to issue an opinion determines whether the state has invoked a ground of forfeiture. Liegakos, 106 F.3d at 1385. Because the Wisconsin Supreme Court did not decide the merits of petitioner’s claims, the standard of review in the new § 2254(d) is inapplicable. Id. Rather, I review the case under the general statutory directive applicable to habeas corpus cases, to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, and limit my focus to errors of constitutional magnitude, United States ex rel. Swimley v. Nesbitt, 608 F.2d 1130, 1132 (7th Cir.1979). V. RIGHT TO PUBLIC TRIAL A. Trial Court’s Exclusion of Member of Public From Trial During the trial the court excluded from the courtroom a member of the public who was observing the proceedings. Petitioner argues that the exclusion violated her right to a public trial. The colloquy relating to the exclusion was as follows: THE COURT: In taking a view of the people who are in the courtroom, as I walked into the courtroom from Chambers I saw — I don’t recall his name. MR. SHELLOW: Mane, Your Honor. THE COURT: Mane, that’s right, a cabdriver by trade, also works for the City of Milwaukee as I recall, who had been on this panel and who was stricken as a result of the voir dire conducted by counsel on both sides. It is my rule that I do not permit any juror who is on the present panel to listen to a trial in which they could have or might have been members of the jury and, therefore, I’m going to direct the bailiff and ask that Mr. Mane absent himself from the jury — from the courtroom. All right. MR. SHELLOW: I merely point out to the Court that he asked me whether he could come in and I said yes, of course he could, that it was a public trial and that it was my — I did not understand that the Court had such a requirement, I obviously object to such requirement but I will tell him or you can have your bailiff tell him whatever you feel is appropriate. MR. LOWE: I think the Court ought to be aware of the fact that at least — I think it’s true^ — Mr. Mane probably is no longer on jury duty. I think his panel was dismissed Monday. THE COURT: Well, I don’t know whether it was. MR. SHELLOW: I don’t know what the situation is. THE COURT: I don’t know whether it was dismissed or not but I do remember particularly the State putting something on the record with respect to Mr. Mane. MR. LOWE: Yes, we did. THE COURT: And with respect to his friendship with counsel for the defense and later in meeting the people — the defendant and others. MR. SHELLOW: One moment, friendship with counsel for the defense? He apparently conveyed me in his taxicab on one occasion. THE COURT: Well, he said he was a friend of yours. MR. SHELLOW: I don’t think he was. THE COURT: He said he knew you and anyone that knows you is a friend of yours. MR. SHELLOW: Whatever the record reflects I object to it. I think it takes away many of my client’s valuable rights. THE COURT: You can get a writ of prohibition if you wish. MR. SHELLOW: I can’t get a writ of prohibition. I am in the middle of a jury trial, Your Honor. (Tr. at 1110-12.) The court’s mention of the state’s having put “something on the record” referred to a statement by the prosecutor earlier in the trial advising the court that after Mane had been excused from service on the jury panel the prosecutor saw him conversing with petitioner and Tim Braun and shaking hands with them near the courthouse. The prosecutor also said he had talked to Mane, and that Mane said he sympathized with petitioner. The prosecutor, though, also advised the court that he thought Mane had done nothing improper, and that there was no need for the court to do anything. (Tr. at 838-39.) B. Nature of Public Trial Right The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public trial.” U.S. Const. amend. VI. This right has long been recognized as applicable in state proceedings. Argersinger v. Hamlin, 407 U.S. 25, 27-28, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The public trial guarantee is for the benefit of the accused. In re Oliver, 333 U.S. 257, 270 n. 25, 68 S.Ct. 499, 92 L.Ed. 682 (1948). The guarantee of a public trial is a safeguard against any attempt to employ the courts as instruments of persecution. Id. at 270, 68 S.Ct. 499. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. Id. Essentially, the public trial guarantee of the Sixth Amendment embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring.) The objective is a fair trial and the public trial is an institutional safeguard to attaining it. Id. The right, to a public trial thus belongs to the accused and is inherent in the institutional process by which justice is administered. Obviously, the public trial guarantee is not violated if an individual member of the public cannot gain admittance to a courtroom because there are no available seats. The guarantee will already have been met, for the “public” will be present in the form of those persons who did gain admission. Even the actual presence of the public is not guaranteed. A public trial implies only that the court must be open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process. Id. at 588-89, 85 S.Ct. 1628. In Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 81 (1984), the supreme court held that although the right to a public trial is not absolute and must in some instances give way to other rights or interests such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information, such circumstances will be rare. The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Id. (quoting Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)). The requirement articulated in Waller and Press-Enterprise, that trial courts may not exclude members of the public from a trial without an “overriding interest” or substantial justification, was widely recognized by courts, including the Seventh Circuit, prior to Waller. See United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir.1977) (trial judge must have “substantial justification for excluding spectators”). The long-standing rule was that a court’s discretion to order exclusion was limited to those situations where exclusion was necessary to further the administration of justice. United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir.1975). And although a judge could order an exclusion if there was justification, the exclusion order could not extend further than the special issues warranted in the particular case. Neal v. State, 86 Okla.Crim. 283, 192 P.2d 294, 296 (App.1948). A number of reasons have been found sufficient to justify exclusion orders. See, e.g., United States v. Rios Ruiz, 579 F.2d 670, 674-75 (1st Cir.1978) (uniformed officers were asked to leave courtroom during prosecution of two police officers for beatings and assaults, with caveat that they were welcome in courtroom out of uniform); Latimore, 561 F.2d at 694-95 (to protect witness from the trauma of reliving a sexual assault); Lloyd, 520 F.2d at 1274-75 (on-going undercover investigation); United States v. Clark, 498 F.2d 535, 537-38 (2d Cir.1974) (to protect confidential information); Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 539-40 (2d Cir.1974) (protection of trade secrets); United States v. Bell, 464 F.2d 667 (2d Cir.1972) (discussion of skyjacker profile); United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir.1969) (to protect witness from harassment or harm); United States v. Kobli, 172 F.2d 919, 922 (3d Cir.1949) (to protect individuals from the presentation of evidence expected to be obscene); State v. Genese, 102 N.J.L. 134, 130 A. 642, 646 (Err. & App.1925) (to prevent a physical disturbance or violent situation from taking place in the courtroom); Colletti v. State, 12 Ohio App. 104 (1919) (where influenza epidemic required protection of public health). Thus, although a variety of reasons will justify an exclusion order, exclusions lacking any justification violate the right to a public trial. C. Was Right Violated? Here, the trial court excluded a member of the public because he had previously served on the jury panel and because he was a friend of the defendant’s lawyer and the defendant. The court made no attempt to justify excluding a member of the public because he had previously served on a jury panel. The court also made no attempt to justify excluding a member of the public because he was friendly to the defendant or her lawyer. Moreover, the court excluded the individual on its own motion over the objection of the defendant and despite the prosecutor’s statement that the individual had completed jury duty. The trial court flippantly rejected the defense counsel’s statement that the spectator was not a friend of his with the statement: “He said that he knew you and anyone that knows you is a friend of yours.” (Tr. at 1111-12.) The court’s exclusion of Mane was not necessary to serve any legitimate purpose. None of the justifications that courts have found sufficient to uphold exclusion orders was present. In fact, Mane’s friendliness to the defense made the exclusion even more egregious. Oliver, 333 U.S. at 272, 68 S.Ct. 499 (“an accused is at the very least entitled to have his friends ... present”); Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969) (constitutional error to exclude the defendant’s family and friends); Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965) (defendant’s right to public trial violated where spectators, including defendant’s friends, but not including press, court officials and parties’ relatives, were excluded). Even if the court had some legitimate concern, such as a concern that Mane would talk to jurors he had met while on the panel, the court could have addressed this issue in a more narrowly tailored fashion by directing Mane not to talk to the jurors. However, the court expressed no such legitimate concern. Thus, the exclusion was unjustified, overbroad and arbitrary. Further, respondent concedes both that the exclusion was unjustified, (Resp’t’s Supp’l Br. at 8) (“the state will not detain this court in attempting to justify his exclusion”), and that it was “arbitrary,” (id. at 16). While acknowledging that the exclusion was improper, respondent argues that it nevertheless did not violate petitioner’s right to a public trial. First, respondent argues that because the exclusion constituted a partial, rather than a complete, closure of the trial, it is not subject to the “overriding interest” standard set forth in Waller. (Resp’t’s Supp’l Br. at 10.) Respondent points out that six circuits apply a less demanding “substantial reason” standard to partial closures. See United States v. Osborne, 68 F.3d 94, 99 (5th Cir.1995) (Second, Eighth, Ninth, Tenth and Eleventh Circuits in addition to Fifth have adopted “substantial reason” test). The problem with respondent’s argument, however, is that the exclusion here cannot satisfy any standard, even a less stringent one. The closure was, as respondent concedes, both unjustified and arbitrary. Prior service on a jury panel does not constitute a substantial reason for excluding a member of the public from a trial. Even if there might have been a reason to exclude someone who remained on jury duty and might have been called in another case, there is no evidence that Mane remained on jury duty. The prosecutor said that he thought that Mane was no longer on jury duty, and the court made no effort to find out the facts. Nor is there a substantial reason to exclude a member of the public because he is friendly to the defendant or her lawyer. Therefore, it makes no difference whether the “overriding interest” or “substantial reason” standard applies. The exclusion was unjustified under either standard. Second, respondent argues, based on Brown v. Kuhlmann, 142 F.3d 529, 537 (2d Cir.1998), that the exclusion here was insufficiently significant to violate the public trial right or, alternatively, to justify vacating petitioner’s conviction. (Resp’t’s Supp’l Br. at 12.) Brown involved a brief trial closure when an undercover officer testified. The Brown court expressed skepticism that the closure was significant enough to impair the values furthered by the public trial guarantee but acknowledged that under supreme court precedent its skepticism was not a basis for denying relief. The court then found the closure justified based on concerns for the officer’s safety and noted that even if unjustified, the defendant’s objection was “perfunctory.” Brown, 142 F.3d at 543. Neither of the factors essential to the Brown decision is present here. Unlike Brown, the exclusion here was unjustified and the defendant objected vigorously and repeatedly. Third, respondent argues, based on Peterson v. Williams, 85 F.3d 39 (2nd Cir.1996), that the exclusion here was too trivial to violate the Sixth Amendment. (Resp’t’s Supp’l Br. at 12-13.) Peterson involved an inadvertent courtroom closure of about fifteen minutes while the defendant testified. Immediately after the closure the defendant’s lawyer presented a final argument which summarized the defendant’s testimony. The court held that the closure did not amount to a violation of the public trial right because it was “1) extremely short, 2) followed by a helpful summation, and 3) entirely inadvertent.” Peterson, 85 F.3d at 44. None of the elements in Peterson is present here, where the exclusion lasted for the whole trial, the testimony was not summarized for the excluded member of the public, and the exclusion was deliberate, not inadvertent. In addition, the Seventh Circuit’s discussion of the maxim de minimus non curat lex suggests that the exclusion cannot be regarded as trivial. In Hessel v. O’Hearn, 977 F.2d 299, 304 (7th Cir.1992), the court characterized the maxim as denoting “types of harm, often but not always trivial, for which the courts do not think a legal remedy should be provided.” A violation of the public trial right does not fall into this category. Further, according to the analysis of the leading work of scholarship on the de minimis maxim as recognized by the Seventh Circuit, id. at 303, the concept of triviality would not be appropriately applied here. In their article, De Minimis Non Curat Lex, 45 Mich.L.Rev. 537 (1947), Max L. Veech and Charles R. Moon analyze various factors courts consider in determining whether to apply the maxim. The most important factor is the purpose behind the doctrine to be interpreted. Id. at 545. The purpose of the public trial guarantee is to ensure that members of the public are not unjustifiably excluded from trials — precisely what occurred here. Thus, to hold that the exclusion here was trivial would undermine the purpose of the guarantee. The second factor to consider in connection with the de minimis maxim is practicality. Id. at 551. This factor, too, favors not applying the maxim here. There are no practical impediments to applying the public trial guarantee in this case. The third factor mentioned by Veech and Moon is intent. Id. at 554. The authors point out that an innocent mistake is always more readily excused than an intentional one. This factor, too, suggests that I should not treat the exclusion here as trivial. The judge’s order was not innocent or inadvertent but intentional, entered after discussion with the parties and over the objection of the defendant. Fourth, respondent asserts that the exclusion did not violate the public trial guarantee because the press and other spectators attended the trial. (Resp’t’s Supp’l Br. at 14.) However, courts have long recognized that the right to a public trial bars the arbitrary picking and choosing of who may attend. See Addy v. State, 849 S.W.2d 425 (Tex.App.1993). As early as 1891 the Michigan Supreme Court held that it was error to exclude all but “respectable citizens.” People v. Murray, 89 Mich. 276, 50 N.W. 995, 998 (1891). In State ex rel. Stevens v. Circuit Court for Manitowoc County, 141 Wis.2d 239, 250-51, 414 N.W.2d 832 (1987), the Wisconsin Supreme Court held that the right to a public trial was violated where the proceedings were arbitrarily closed to some members of the public, even though the media was allowed access. See also Davis v. United States, 247 F. 394, 395 (8th Cir.1917) (trial court’s exclusion of spectators other than relatives of the accused, members of the bar and members of the press denied right to public trial; court stated that “a public trial is a trial at which the public is free to attend”); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir.1969) (right to public trial violated by order excluding persons other than defendant, lawyers, witnesses, and court officers). The foregoing decisions and many others make clear that the unjustified exclusion of some members of the public but not others violates the public trial guarantee. Fifth, respondent argues that petitioner “makes no attempt to show why Mr. Mane’s attendance would have assisted the defense.” (Resp’t’s Supp’l Br. at 14.) However, no cases suggest that the excluded person’s ability to help the defense is relevant to whether the public trial guarantee was violated. Sixth, respondent argues that the exclusion was narrow and therefore did not violate the public trial guarantee. Respondent again cites no cases where unjustified exclusions were nevertheless upheld because only one member of the public was excluded. Respondent cites only cases where exclusions were found to be justified or where no one was excluded. See, e.g., United States v. Galloway, 963 F.2d 1388 (10th Cir.1992) (partial closure justified based on court’s findings of fact regarding sexual assault victim); Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir.1975) (where bailiff without knowledge of judge refused to allow persons to enter or leave courtroom during counsel’s arguments in order to prevent disturbance and where condition existed for short time and was quickly changed by court when advised of bailiff’s action); Brandon v. State, 839 P.2d 400, 412-13 (Alaska App.1992) (exclusion of assault defendant’s mother during testimony of defendant’s six year old child was justified based on findings of judge); People v. Woodward, 4 Cal.4th 376, 14 Cal.Rptr.2d 434, 841 P.2d 954, 958-59 (1992) (exclusion justified- by interest in maintaining court security and orderly courtroom proceedings). Finally, respondent argues that “the only one who suffered any actual harm from the trial court’s order was Mr. Mane himself.” (Resp’t’s Supp’l Br. at 15.) However, as has been noted, the public trial guarantee is for the benefit of the accused. Oliver, 333 U.S. at 270 n. 25, 68 S.Ct. 499. Whatever harm the excluded spectator suffered is irrelevant to whether the defendant’s right was violated. In sum, none of respondent’s arguments as to why an admittedly arbitrary and unjustified exclusion nevertheless does not violate the public trial guarantee is persuasive. Because the exclusion was unjustified it violated petitioner’s constitutional right to a public trial. D. Remedy for Violation of Right to Public Trial Petitioner contends that the appropriate remedy for a violation of the public trial right is a new trial. Respondent disagrees, arguing that: (1) the only available remedy belongs to the excluded spectator, (Resp’t’s Supp’l Br. at 16); (2) petitioner’s remedy was to bring a writ of prohibition, (id. at 21); (3) Waller does not require that a conviction be vacated because of a public trial violation, (id. at 18); and (4) even if Waller does require reversal of a conviction, the rule may not be applied retroactively to petitioner’s conviction, which became final before Waller was decided, (id. at 23). Instead, respondent argues that I should apply harmless error analysis and under such analysis find exclusion of the spectator to be harmless. Respondent’s arguments that only the excluded member of the public had a remedy and that petitioner’s remedy was to bring a writ of prohibition are not supported by case law and need not be discussed further. I now turn to respondent’s Waller-related arguments. 1. Remedy Required by Waller Waller involved the improper closure of a suppression hearing, not a trial. With respect to the appropriate remedy the court stated: The parties do not question the consistent view of the lower federal courts that the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee. We agree with that view, but we do not think it requires a new trial in this case. Rather, the remedy should be appropriate to the violation .... A new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial, or in some other material change in the suppression of material evidence not suppressed at the first trial, or in some other material change in the positions of the parties. Waller, 467 U.S. at 49-50, 104 S.Ct. 2210 (footnote omitted). Respondent argues that Waller contradicts itself by stating both that a defendant need not prove prejudice in order to obtain relief but also that the remedy must be appropriate to the violation. (Resp’t’s Supp’l Br. at 18-19). Respondent then proposes that I reconcile this “contradiction” by reading Waller as requiring a new trial for public trial violations involving partial closures only where the defendant was “deprived of the safeguards of the public trial.” (Resp’t’s Supp’l Br. at 19-21.) However, none of the three cases respondent cites supports its argument that a defendant must show prejudice to obtain relief for an unjustified partial closure. Woodward, 14 Cal.Rptr.2d 434, 841 P.2d at 958-59, involved an exclusion justified by “substantial reasons.” In State v. Rusin, 153 Vt. 36, 568 A.2d 403, 406 (1989), the trial court was also found to have had sufficient reason for excluding certain spectators. And Renkel v. State, 807 P.2d 1087, 1093 (Alaska App.1991), held only that the level of justification necessary to permit closure must take into consideration whether the closure is total or partial. In fact, because the partial closure in Renkel was unjustified, no proof of prejudice was required and the conviction was reversed. Id. at 1093-94. Moreover, I disagree with respondent’s contention that Waller contradicts itself. Waller holds that prejudice is presumed from a public trial violation and that the remedy for such violation must be commensurate with the violation itself. Accordingly, if the violation occurred at a pretrial hearing, but not at the trial, a new trial may not be appropriate. See, e.g., Waller, 467 U.S. at 49-50, 104 S.Ct. 2210; Bennett, 419 F.2d at 608-09; State v. Webb, 160 Wis.2d 622, 467 N.W.2d 108 (1991). The previously closed hearing may be ordered reheld in public. Under Waller, only in such cases of non-trial closures is the reviewing court entitled to conduct a “proportionality” or harmless error analysis as proposed by respondent. Waller, however, does not permit such an analysis for exclusions that occur during the trial itself unless there is another way of restoring the public nature of the trial. An example of a case where a violation affected the trial but where the public nature of the trial could be restored is United States v. Canady, 126 F.3d 352 (2d Cir.1997). There, the judge violated the defendant’s right to a public trial by issuing a written decision after a criminal trial. However, the public nature of the trial could be restored by the judge pronouncing the decision publicly. If the violation affects the trial itself, however, and there is no other way to restore the public nature of the trial, then the only proportional remedy is a new trial. Waller does not contradict itself; therefore this court will not create an exception to the rule established by the United States Supreme Court in Waller that prejudice need not be proven in cases of public trial violations. Waller provides that the remedy for a public trial violation is to vacate the conviction and order a new trial, not only where the harm in a particular case is sufficiently egregious to justify that result, but in any case where the public trial right is violated and the public nature of the trial cannot be restored by another remedy. The defendant is not required to show specific prejudice as a condition of having the conviction vacated and receiving a new trial. Here, there is obviously no way by which the public nature of the trial can be restored. I know of no order that could be entered to undo the trial court’s unwarranted exclusion of a member of the public. Thus, if the rule set forth in Waller is applicable here, I must issue the writ, invalidating petitioner’s conviction. 2. Was Waller Rule New? Respondent argues that the rule set forth in Waller that a defendant need not prove harm to obtain relief was a “new rule,” which under Teague v. Lane, 489 U.S. 288, 299-316, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), may not be retroactively applied to invalidate petitioner’s conviction because it became final prior to Waller. Rather, respondent argues, prior to Waller a public trial violation was subject to harmless error analysis. (Resp’t’s Supp’l Br. at 23.) In Teague, the Supreme Court adopted a new approach to the retroactive application in habeas corpus proceedings of newly announced legal rules. The Teague doctrine is that, with two exceptions, a new rule will not be retroactively applied in federal habeas corpus proceedings to void a conviction that was final when the new rule was announced. Id. at 301, 109 S.Ct. 1060. The purpose of the Teague doctrine is to prohibit “the continuing reexamination of final judgments based upon later emerging legal doctrine.” Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). The first exception permits retroactive application of a new rule if the rule places certain private conduct beyond the power of the state to proscribe. Teague, 489 U.S. at 307, 109 S.Ct. 1060. The second exception permits retroactive application of new rules that -create “watershed” rules of criminal procedure. Id. A federal court applying the nonretroac-tivity doctrine proceeds in three steps: First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must “[s]urve[y] the legal landscape as it then existed” and “determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.” Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (citation omitted) (quoting Graham v. Collins, 506 U.S. 461, 468, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)); accord Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Thus, the first step in determining whether petitioner is seeking the benefit of a new rule is to determine when petitioner’s conviction became final for Teague purposes. The supreme court has stated that “by final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before the decision” in the case which allegedly pronounces the new rules. Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). Petitioner was found guilty and sentenced on December 20, 1976. On August 4, 1977, she filed timely post-conviction motions pursuant to § 974.02. On December 22, 1977, she escaped. On May 1, 1978, the trial judge dismissed her § 974.02 motions but indicated that if she returned in sixty days he would set aside the dismissal and decide the motions on their merits. Petitioner, however, did not return within sixty days and did not appeal the dismissal order. Therefore, for purposes of the Teague analysis petitioner’s conviction became final when the sixty day grace period afforded by the trial court elapsed, on July 1, 1978. Waller was decided by the United States Supreme Court in 1984. The next step in the Teague analysis is to determine whethe