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Sarfraz v. Smith

United States District Court, E.D. Wisconsin

January 11, 2017

JUDY P. SMITH, Respondent.


          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         I. Facts and Relevant Procedural History

         On May 15, 2010, a woman the parties refer to as I.N. was found in the hallway of her apartment building, bloodied, naked from the waist down, crying, and screaming she had been raped. State v. Sarfraz, 2014 WI 78, ¶ 4, 356 Wis.2d 460, 465, 851 N.W.2d 235, 238. I.N.'s neck bore marks of strangulation, she had a knife wound on her finger, and other assaultive injuries on her body. Id., ¶¶ 22-23.

         I.N. later stated that she had been in her apartment when someone knocked on her door and identified himself as Jim. (ECF No. 14-3 at 60 (all pagination reflects ECF pagination).) Believing it was her landlord, I.N. opened the door only to find an unknown masked male. (ECF No. 14-3 at 60.) The masked man pushed her into the bathroom, strangled her with his hands, held a knife to her neck, and threatened to kill her. (ECF No. 14-3 at 60-61.) I.N. continued to struggle and in the process the attacker's mask came off. (ECF No. 14-3 at 61-62.) I.N. recognized her attacker as the petitioner, Muhammed Sarfraz, a man with whom she and her father had recently briefly lived when they first moved to Milwaukee from Pakistan. (ECF No. 14-3 at 62.) I.N. and Sarfraz had been friendly but never had a romantic relationship.

         I.N. was able to grab the knife and cut Sarfraz on the cheek. (ECF No. 14-3 at 63.) Fearing that Sarfraz was going to kill her, I.N. continued to struggle and scream as the assault continued throughout the apartment. (ECF No. 14-3 at 63-70.) Believing she would not survive, I.N. started to scrawl Sarfraz's name in blood on a newspaper and on a file cabinet but each time was able to write only the first three letters. (ECF No. 14-3 at 70); Sarfraz, 2014 WI 78, ¶ 20. The physical assault turned sexual and Sarfraz eventually raped I.N.

         Police arrested Sarfraz later that day and recovered a bloody knife hidden under the front seat of the car he was driving. Sarfraz, 2014 WI 78, ¶¶ 5, 21. When asked about the cut on his face, Sarfraz told the police he had been robbed by “two African American guys.” (ECF No. 14-7 at 16.) Subsequent testing identified both I.N.'s and Sarfraz's DNA on the knife. A medical examination of I.N. identified vaginal injuries consistent with blunt force and semen from her cervix and vagina. Sarfraz, 2014 WI 78, ¶¶ 21-22. DNA from the semen recovered from her vagina matched Sarfraz; the semen recovered from her cervix was not tested for DNA. (ECF No. 14-5 at 53-54.) Police also recovered a pornographic DVD from I.N.'s DVD player. (ECF No. 14-4 at 46-47, 53-54.) I.N. reported that Sarfraz brought the DVD with him and put it on during the assault. (ECF No. 14-3 at 66.) Police never found a mask.

         Sarfraz was charged with second degree sexual assault with force or violence by use of a dangerous weapon and the matter proceeded to a jury trial. (ECF No. 10-1 at 2-3.) At trial Sarfraz told a very different version of the events of May 15, 2010, and his relationship with I.N. According to Sarfraz, after I.N. and her father came to live with Sarfraz, his wife, and their three children, he and I.N. developed a good friendship that turned romantic. (ECF No. 14-6 at 103.) Flirtatious teasing became hugging and kissing over about a month. (ECF No. 14-6 at 103-05.) Sarfraz began to discuss marriage with I.N. (ECF No. 14-6 at 106) and I.N. agreed to marry him (ECF No. 14-7 at 3). Sarfraz testified that he did not intend to divorce his wife to be with I.N. because, in his culture, he could have up to four wives. (ECF No. 14-6 at 106) The two also used to watch pornographic movies together. (ECF No. 14-7 at 10-11.)

         I.N. and her father moved out of Sarfraz's apartment after Sarfraz's wife saw I.N. and Sarfraz in the bedroom together. (ECF No. 14-6 at 65.) Sarfraz's wife “got really emotional” and “started throwing [I.N.'s] belongings out of [the] apartment.” (ECF No. 14-6 at 67.) She demanded that I.N. move out. I.N. and her father did so a few days later. (ECF No. 14-6 at 67-68.)

         However, the relationship between Sarfraz and I.N. continued, with Sarfraz regularly going to I.N.'s new apartment. On May 15, 2010, he went over to her apartment, they watched television, and their conversation progressed toward marriage. (ECF No. 14-7 at 20.) I.N. no longer wanted to get married unless Sarfraz left his wife and children instead of having I.N. as a second wife. (ECF No. 14-7 at 20.) Sarfraz refused to leave his family and “after that … things got heated, ” according to Sarfraz. (ECF No. 14-7 at 21.) I.N. “got furiously mad, ” grabbed Sarfraz by the collar, and began to hit him with her fist. (ECF No. 14-7 at 22.)

         When Sarfraz went to use the bathroom, I.N. came in and cut him on his face with a knife. (ECF No. 14-7 at 23-24.) A struggle ensued during which Sarfraz grabbed I.N. around her neck and was able to get the knife away from I.N. (ECF No. 14-7 at 25-26.) Sarfraz threatened to call the police, warning I.N. that, if he did so, it might complicate her immigration status. (ECF No. 14-7 at 26-27.)

         I.N. became remorseful, began to cry, and tried to comfort Sarfraz. She sat atop Sarfraz and started what Sarfraz described as “love talk.” (ECF No. 14-7 at 28.) Sarfraz's pants were still down after having been attacked in the bathroom and I.N. took his penis in her hand, told him that she loved him, and that she wanted to have sex with him. (ECF No. 14-7 at 29.) Sarfraz asked I.N. to leave him alone but she persisted, lifting up her shirt. (ECF No. 14-7 at 29.) I.N. continued with the “love talk” and asked Sarfraz to forgive her. (ECF No. 14-7 at 31.) Their intimate contact continued. Sarfraz was uncertain if they actually had intercourse (ECF No. 14-7 at 43) but testified he masturbated himself and ejaculated near her vagina. (ECF No. 14-7 at 32-33).

         Sarfraz wanted to tell the jury more but the court barred him from doing so. Relying upon Wisconsin's rape shield statute, the trial court barred Sarfraz from testifying that there were prior instances when the kissing and hugging progressed to Sarfraz touching I.N.'s breasts and I.N. rubbing Sarfraz's penis until he ejaculated. (ECF No. 14-1 at 31.) This relationship continued after I.N. moved with her father to their own apartment. (ECF No. 14-1 at 33-34.) However, Sarfraz denied ever previously having sexual intercourse with I.N. (ECF No. 14-1 at 30-31.) Sarfraz also wanted the jury to hear more from his wife. Absent Wisconsin's rape shield law she would have testified not just that she found Sarfraz and I.N. in the bedroom together but that she found them in bed together, with neither wearing pants. (ECF No. 14-2 at 18-19).)

         Although acknowledging that the past sexual contact was relevant evidence, the trial court concluded that Wisconsin's rape shield law barred its admission because the past sexual contact was so different from the violent armed assault and sexual intercourse alleged to have occurred on May 15, 2010. (ECF No. 14-2 at 41-43.) Thus, it barred the admission of evidence regarding any prior sexual contact between Sarfraz and I.N. but permitted evidence of romantic contact such as kissing and hugging. (ECF No. 14-2 at 44.)

         The jury found Sarfraz guilty and the court sentenced him to ten years of initial confinement to be followed by five years of extended supervision. (ECF No. 10-1 at 2.) Sarfraz appealed and the Wisconsin Court of Appeals reversed, holding that the trial court erred by excluding the evidence of the past sexual contact between Sarfraz and I.N. State v. Sarfraz, 2013 WI.App. 57, 348 Wis.2d 57, 832 N.W.2d 346. The Wisconsin Supreme Court ...

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