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Little v. Foster

United States District Court, E.D. Wisconsin

November 15, 2017



          J.P. Stadtmueller U.S. District Judge

         Petitioner, Antuan Valentino Little (“Little”), was convicted of first-degree sexual assault of a child and exposing a child to harmful materials after a jury trial held in Milwaukee County Circuit Court. After being denied postconviction relief by the Wisconsin courts, he now seeks a writ of habeas corpus from this Court pursuant to 28 U.S.C. § 2254. (Docket #1). After screening Little's petition and evaluating his requests to remove certain claims, see (Docket #12, #21, #34), two grounds for relief remain: (1) ineffective assistance of counsel arising from a failure to introduce evidence of the victim's prior sexual assault allegation against another man; and (2) denial of due process arising from the trial court's failure to order a new trial based on newly discovered evidence that the victim's father pressured her into testifying against Little at trial. The parties have now fully briefed their respective positions. For the reasons stated below, the Court finds that Little's petition is without merit and must be denied.


         State criminal convictions are generally considered final. Review may be had in federal court only on limited grounds. To obtain habeas relief from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the petitioner to show that the state court's decision on the merits of his constitutional claims was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133, 141 (2005). The burden of proof rests with the petitioner. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The relevant decision for this Court to review is that of the last state court to rule on the merits of the petitioner's claim. Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).

         A state-court decision runs contrary to clearly established Supreme Court precedent “if it applies a rule that contradicts the governing law set forth in [those] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result.” Brown, 544 U.S. at 141. Similarly, a state court unreasonably applies clearly established Supreme Court precedent when it applies that precedent to the facts in an objectively unreasonable manner. Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).

         The AEDPA undoubtedly mandates a deferential standard of review. The Supreme Court has “emphasized with rather unexpected vigor” the strict limits imposed by Congress on the authority of federal habeas courts to overturn state criminal convictions. Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the state courts were wrong; he must also prove they acted unreasonably. Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540, 546 (7th Cir. 2014) (“An ‘unreasonable application of' federal law means ‘objectively unreasonable, not merely wrong; even ‘clear error' will not suffice.'”) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)).

         Indeed, the habeas petition must demonstrate that the state court decision is “so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.'” Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013) (quoting Harrington, 562 U.S. at 102). The state court decisions must “be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v. Endicott, 456 F.3d 786, 792 (7th Cir. 2006). Further, when a state court applies general constitutional standards, it is afforded even more latitude under the AEDPA in reaching decisions based on those standards. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”).

         As the Supreme Court has explained, “[i]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Section 2254(d) stops just short of “imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” See Id. This is so because “habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)).

         A federal court may also grant habeas relief on the alternative ground that the state court's adjudication of a constitutional claim was based upon an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(2). The underlying state court findings of fact and credibility determinations against the petitioner are, however, presumed correct. Newman v. Harrington, 726 F.3d 921, 928 (7th Cir. 2013). The petitioner overcomes that presumption only if he proves by clear and convincing evidence that those findings are wrong. 28 U.S.C. § 2254(e)(1); Campbell, 770 F.3d at 546. “A decision ‘involves an unreasonable determination of the facts if it rests upon factfinding that ignores the clear and convincing weight of the evidence.'” Bailey, 735 F.3d at 949-50 (quoting Goudy v. Basinger, 604 F.3d 394, 399-400 (7th Cir. 2010)). “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). If shown, however, an unreasonable factual determination means that this Court must review the claim in question de novo. Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).

         2. BACKGROUND

         As noted above, Little was convicted of first-degree sexual assault of a child and exposing a child to harmful materials after a jury trial held in Milwaukee County Circuit Court on January 27-29, 2010. He was sentenced to eleven years in prison to be followed by six years of extended supervision.

         The victim, identified as “J.B., ” testified at Little's trial. She stated that in 2007, when she was only ten years old, Little forced her to rub his penis wrapped in a sandwich bag to the point of ejaculation. This occurred at some point between November 1, 2003 and August 30, 2005, when she and her mother lived with Little in Milwaukee. Little also made J.B. watch a pornographic video kept hidden under her mother's bed on at least one occasion during the same time frame. These offenses occurred when Little was left alone with J.B. and her siblings while their mother was away at work during the day.

         J.B. did not initially tell her mother about Little's sexual misconduct because she was afraid her mother would not believe her and she knew that her mother loved Little. Rather than tell her mother, J.B. first told her cousin in 2007 about the sexual misconduct. Her cousin then told her uncle who, in turn, told her biological father, Humberto Rangel (“Rangel”), who reported it to police in 2009, after J.B. came to live with him upon his release from jail.

         J.B. first disclosed the sexual abuse by Little to police in June 2007 while they were investigating an alleged sexual assault by another man, Michael C., against her younger sister. When J.B. reported the incident to Milwaukee Sensitive Crimes Police Officer Karla Lehman (“Lehman”), she wrote a note imploring: “Please, please, please, please, please don't tell my mom, ” alongside a drawing of a frowning face with tears falling. (Docket #15-17 at 37). J.B. also drew a star on the note inside of which she drew a heart with the words, “I love my mother and my dad.” Id. at 38. During her interview with Lehman, J.B. accused both Little and Michael C. of sexual assault.

         Police referred J.B.'s 2007 allegations against Little and Michael C. to the district attorney. However, neither man was charged. The district attorney noted both that J.B. “had several inconsistencies in her story” and that J.B. had recanted her allegations against Little. J.B. admitted that she had intentionally lied to Lehman concerning Little's assaults because “she was angry with him.” (Docket #15-9 at 25). J.B. also told her mother later in 2007 that she had lied and that Little had not abused her. J.B. recanted to her mother because she did not want her mother to feel bad. As discussed further below, J.B. never recanted her allegations against Michael C. See infra Part 3.1.

         As noted above, J.B. started living with Rangel in June 2009 after he was released from jail. Rangel took J.B. for a walk in early August and asked whether Little did anything to her as his brother (and her uncle) had reported. J.B. turned red and did not provide details but confirmed that Little had sexually abused her. Rangel reported this to police and took J.B. to the police station a few days later. Rangel told police that he wanted “those guys that molested his daughter put in jail.” (Docket #15-9 at 28).

         Lehman interviewed J.B. on August 19, 2009, at Rangel's urging. At trial, Lehman described J.B.'s demeanor and the details of her account as being similar to her 2007 interview and to her trial testimony, which took place the day before Lehman testified. Little's theory of defense at trial was that J.B. lied so she could live with her biological father, rather than with Little and her mother.

         On direct review, Little argued that his trial attorney was ineffective for not introducing evidence under Wis.Stat. §§ 971.31(11) and 972.11(2)(b)(3) that J.B. falsely accused another man of sexual assault. This was the same man, Michael C., who was investigated for sexually assaulting her sister. The trial court summarily denied relief because Little made an insufficient showing that J.B.'s sexual assault allegation against Michael C. was false.[1]

         The Wisconsin Court of Appeals agreed in a per curiam decision issued January 3, 2013. The court, applying State v. Ringer, 785 N.W.2d 448, 460 (Wis. 2010), held that merely showing that Michael C. would deny any wrongdoing and was not charged did not sufficiently allege that J.B.'s 2007 sexual assault allegation against him was untrue. Without more, the court held, “no reasonable jury would be able to conclude that the prior allegations were, in fact, false.” (Docket #15-2 at 3). The Wisconsin Supreme Court denied Little's petition for review June 12, 2013.

         On collateral review, Little moved for a new trial on the ground that J.B.'s father, Rangel, admitted that he pressured her to testify at trial against her wishes. Little presented an affidavit from Rangel stating that, because he believed J.B.'s allegations against Little, he pressured her to testify to ensure Little was convicted. The trial court denied the motion on April 30, 2014, after holding that there was nothing in Rangel's uncorroborated affidavit to support the conclusion that J.B. lied at trial or that there was a reasonable probability of a different verdict had Rangel testified that he pressured his daughter to testify. The Wisconsin Court of Appeals affirmed in a decision issued September 22, 2015, finding that evidence of Rangel's pressuring J.B. to testify against Little did ...

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