United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Javier Reyes Otero is currently in the custody of the
Wisconsin Department of Corrections at the Stanley
Correctional Institution. He seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his state
court conviction for three counts of first-degree sexual
assault of a child. On September 24, 2015, I ordered
Otero's petition served on respondent and appointed
counsel. Dkt. 5. Counsel obtained new evidence, a video of a
colposcopy examination of the alleged victim, and now moves
to amend his petition to include a claim under Brady v.
Maryland, 373 U.S. 83 (1963), based on the newly
discovered video and stay his petition so that he can exhaust
that new claim in state court. Dkt. 51 and Dkt. 52.
the following facts from the petition, briefs, and state
court records. The facts are not quite complete, I but I have
enough for the purpose of Otero's motion.
was charged in Waukesha County Case No. 2007-CF-17 with
sexually assaulting his autistic ten-year-old daughter, TO.
At the September 2007 trial, TO testified that Otero placed
his penis in her vagina. Dkt. 39-9, at 48. TO had first made
this accusation to Kaysie Kowalewski, her therapist, on
January 6, 2007, after TO asked Kowalewski why her bottom
itched and Kowalewski told TO that it must be because either
TO touched herself there or someone else did.
Angela Carron testified that a general examination performed
by Dr. Havel, an emergency room physician, the night TO made
the accusation, revealed an intact hymen and no signs of
trauma except for diffuse erythema (redness) and possible
petechiae (small hemorrhaging of capillaries in the skin,
similar to a bruise). See Dkt. 39-9, at 68-70. (A
state crime laboratory technician later testified that swabs
collected during that exam tested negative for semen and male
DNA.) Carron also testified about the colposcopy examination
that she performed on TO two days after the accusation. That
examination, which used an instrument with a bright light and
magnifying glass, also revealed no signs of trauma. But,
Carron said, that didn't necessarily mean that TO
hadn't been sexually abused.
jury also heard from Linda Wentworth, a nurse who assisted
Dr. Havel during the general examination. Wentworth testified
that during the exam, Havel pointed to an area “near
the anus [that] appeared red or [like] a bruise.” Dkt.
39-10, at 53. She explained that such a bruise would be
caused by “some kind of force.” Id. When
questioned about Havel's “no trauma” finding,
she explained that it was limited to “the vaginal
area” and did not include the area near the anus where
she saw the bruise. Id. at 60. Margret Hermann, the
lead detective on the case who was present during Havel's
general examination, also testified that she saw a
“reddish bluish type bruising area around [TO's]
anal area” during the exam. Dkt. 39-11, at 83.
called a pathologist, Edward Friedlander, as an expert
witness. Friedlander explained that the redness near TO's
anus could have been a rash, not petechiae-there was a simple
test to tell the difference, but it appeared that the test
wasn't performed. Otero also testified, proclaiming his
September 11, 2007, the jury found Otero guilty of three
counts of first-degree sexual assault of a child.
sentencing, Otero, through new counsel, moved for a new trial
and to compel the production of a video of the colposcopy
exam, which had not previously been requested or produced.
See Dkt. 39-32, at 76-77. The court granted the
motion and ordered Children's Hospital of Wisconsin,
which possessed the video, to make it available to
Otero's expert, Friedlander. See Dkt. 39-22, at
35-37. But despite a court order and Otero's
counsel's efforts to obtain the video from the state and
Children's Hospital, the video wasn't produced.
circuit court denied Otero's motion for a new trial and
sentenced Otero to 20 years' confinement and 10
years' extended supervision on count one and 10
years' initial confinement and 10 years' extended
supervision on counts two and three, consecutive but stayed.
direct appeal, Otero argued that his trial counsel's
failure to obtain discovery, including a January 31 medical
report documenting a rash on TO's genitals, rendered his
representation ineffective. The Wisconsin Court of Appeals
concluded that Otero did not establish prejudice, and so it
affirmed his conviction. The Wisconsin Supreme Court denied
Otero's petition for review.
at this point proceeding pro se, filed a second petition for
postconviction relief focused on the failure to obtain the
colposcopy video. The court of appeals again concluded that
Otero did not establish prejudice and affirmed the
conviction. The Wisconsin Supreme Court denied Otero's
petition for review.
November 2014, Otero filed a pro se petition for federal
habeas corpus relief in this court focusing, again, on the
failure to obtain the colposcopy video. Around the same time,
he filed another motion for postconviction relief in state
court, which also focused on the video. The motion was
denied. I ordered his petition served on respondent and
appointed counsel because of the procedural complexity and
the likelihood that expert testimony would be required
concerning the medical evidence. Dkt. 5. The court granted
Otero's unopposed ...