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Otero v. Richardson

United States District Court, W.D. Wisconsin

March 28, 2018

JAVIER REYES OTERO, Petitioner,
v.
REED A. RICHARDSON, Respondent.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Petitioner 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.

         FACTS

         I draw 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.

         Otero 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.

         Pediatrician 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.

         The 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.

         Otero 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 innocence.

         On September 11, 2007, the jury found Otero guilty of three counts of first-degree sexual assault of a child.

         Before 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.

         The 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.

         On 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.

         Otero, 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.

         In 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 ...


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