United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
Freytes-Torres petitions for a writ of habeas corpus under 28
U.S.C. § 2254.
a two-day jury trial, Freytes-Torres was convicted in Brown
County Circuit Court of felony intimidation of a victim,
Wis.Stat. § 940.45(3), and first-degree sexual assault
of a child under age 16 by use or threat of force or
violence, Wis.Stat. § 948.02(1)(c). The Wisconsin Court
of Appeals summarized the facts as follows:
Freytes-Torres was a friend of the victim's mother. In
January 2011, while her mother and her mother's boyfriend
were in a bedroom at the boyfriend's residence,
Freytes-Torres and the victim were in the living room
watching a movie on the sofa. Freytes-Torres allegedly
touched the victim's breasts and vagina under her
clothes, and then pulled down her pants and had penis to
vagina intercourse while he lay on top of her holding her
down. The victim testified Freytes-Torres told her if she
“snitched or anything” he would do something to
her, which she interpreted as meaning he would kill her. This
occurred when the victim was twelve years old. She testified
she did not tell her mother because she was scared.
A second assault allegedly occurred at the victim's
family's apartment when she was home alone with her
younger sister, who was asleep in her mother's bedroom.
The victim was on the computer chatting with a friend and
listening to music when Freytes-Torres came into the
apartment unannounced and without permission. He started
talking to the victim and then grabbed her and pulled her
into another room where he touched her and then had her lie
on a bed where he removed her pants and had penis to vagina
intercourse with her. As he did so, he held the victim's
hands above her head. When the victim tried to scream for her
sister, he covered her mouth. The victim stated
Freytes-Torres stopped and left immediately when the phone
rang and he could see from the caller identification that it
was her mother.
A third alleged incident occurred when Freytes-Torres once
again entered the apartment without permission. The victim
said he touched her with his hands but she could not remember
the specific places. She also thought he had sexual
intercourse with her on the couch.
Two to three weeks after the third incident, the victim told
her mother and then a social worker at school, who contacted
police. Police subsequently seized the comforter from the bed
where the victim said the intercourse occurred and obtained
buccal swabs from the victim and Freytes-Torres. The
comforter and buccal swabs were submitted to the crime lab
and eight stains were located on each side of the comforter.
Each stain was initially tested with a presumptive test for
semen. All but one was negative. A cutting was taken from the
stain that tested positive and DNA was consistent with both
the victim and Freytes-Torres. Freytes-Torres was identified
as the contributor to the single-source semen portion of the
Freytes-Torres testified in his own defense. He denied having
any type of sexual relations with the victim. He admitted the
semen found on the comforter was his, but claimed it came
from wiping his penis on the comforter after masturbating
when recalling a moment when he saw the victim naked while
changing clothes. He also claimed the victim had several
motives for falsifying her testimony.
The jury found Freytes-Torres guilty of felony intimidation
of a victim, and first-degree sexual assault of a child under
age sixteen, by use or threat of force or violence, which
occurred during the second incident at the family apartment.
He was acquitted of the sexual assaults alleged in the first
and third incidents, as well as two charges of burglary with
intent to commit a sexual assault.
State v. Freytes-Torres, No. 2012AP2597-CRMN, slip
op. at 2-3 (Wis. Ct. App. Aug. 12, 2014).
direct appeal, Freytes-Torres's appellate counsel filed a
no-merit brief with the Wisconsin Court of Appeals, and
Freytes-Torres filed his own reply. The Wisconsin Court of
Appeals summarily affirmed the conviction. Freytes-Torres
petitioned to the Wisconsin Supreme Court, but that court
federal habeas petition, Freytes-Torres raises three claims.
First, he contends that comments and conduct of the
prosecutor during the trial deprived him of his due-process
right to a fair trial, and also that trial counsel was
ineffective in failing to move for a mistrial based on the
prosecutor's conduct. Second, he contends that defense
counsel was ineffective in failing to retain an independent
DNA expert. Third, he contends that defense counsel was
ineffective in three other respects: failing to object to a
jury instruction on use or threat of force or violence,
failing to object to the court's failing to require the
jury to determine the exact date on which the sexual assault
occurred, and being generally unprepared for trial.