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Freytes-Torres v. Foster

United States District Court, E.D. Wisconsin

October 18, 2016

XAVIER FREYTES-TORRES, Petitioner,
v.
BRIAN FOSTER, Warden, Green Bay Correctional Institution Respondent.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         Xavier Freytes-Torres petitions for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. BACKGROUND

         Following 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 stain.
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).

         On 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 denied review.

         In his 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.

         II. ...


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