United States District Court, E.D. Wisconsin
MICHEAL P. COTTON, Petitioner,
WARDEN SCOTT ECKSTEIN, Respondent.
Stadtmueller U.S. District Judge.
Micheal P. Cotton (“Cotton”), has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, alleging that his state conviction and sentence
were imposed in violation of the Constitution. (Docket #1).
The parties have fully briefed their respective positions on
Cotton's asserted grounds for relief. For the reasons
stated below, the Court finds that Cotton's petition is
without merit and must be denied.
STANDARD OF REVIEW
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 claim 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).
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).
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)).
the petitioner 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
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. Indeed, 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.,
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 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, an unreasonable factual determination by
the state court means that this Court must review the claim
in question de novo. Carlson v. Jess, 526
F.3d 1018, 1024 (7th Cir. 2008).
January 2011, the State of Wisconsin charged Cotton by
information with four counts of first-degree sexual assault
of a child in Milwaukee County Circuit Court No.
2011CF000071. Counts one and two alleged that between
November 22, 2009 and August 30, 2010, Cotton engaged in
sexual intercourse with K.J., a child who had not attained
the age of 12, in violation of Wis.Stat. § 948.02(1)(b).
Counts three and four alleged that between June 16, 2009 and
June 15, 2010, Cotton engaged in sexual contact with S.E., a
child who had not attained the age of 13, in violation of
Wis.Stat. § 948.02(1)(e). According to the information,
all of these acts took place at a residence on 25th Street in
was tried before a jury from June 11 to June 14, 2012. S.E.,
K.J., and Cotton, among others, testified. S.E., who was 11
at the time of trial, testified that Cotton began sexually
assaulting her when she was “about 9.” (Docket
#9-42 at 54). She stated that two assaults took place at her
old home on Michigan Street, while a third assault took place
at her new home on 25th Street. S.E. explained that Cotton
was living with her family because he and her mother, C.E.,
the first assault, S.E. recalled that she woke up in her
bedroom to the sound of the television playing in the living
room. She got out of bed and went to the living room to turn
the television off, where she saw Cotton resting on the
couch. Cotton called S.E. over to the couch and “told
[her] to make him feel good.” Id. at 56, 80.
He then “took out his penis” from his shorts and
“told [her] to rub [it].” Id. at 57,
80-81. When she did not, Cotton “yanked [her]
hand” and “made [her] rub it.” Id.
at 57, 82. After “rub[bing] his penis up and
down” for a while, Cotton then “told [her] to
open [her] mouth.” Id. at 58, 82. She went on
Q: And what happened after Miguel told you to open your
A: He shoved his penis in my mouth.
Q: And what did he do-what happened after he put his penis in
A: Some stuff just started squirting out.
. . .
Q: And what happened after this happened?
A: I started vomiting all over him.
Q: All over Miguel?
Q: And what happened then? . . .
A: He made me swear not to tell anybody or he was going to
Id. at 59, 82-83.
the second assault, S.E. testified that she was “half
asleep, half awake” when Cotton carried her into his
and her mother's bedroom. Id. at 61, 85. She
woke up when she “realized that something was touching
[her].” Id. at 61, 86. When she “opened
[her] eyes, ” she noticed that her “clothes
[were] off” and Cotton “was rubbing his penis on
[her] private part.” Id. at 61, 86-87. She
went on to explain that “while he was rubbing his penis
against [her] private part, ” some “stuff
start[ed] coming out.” Id. at 62, 88. After,
Cotton “told [her] to get up, ” so she “put
on [her] clothes” and “went to the
bathroom” to “wipe[ ] it off of [her].”
Id. at 62-63, 89.
the third assault, S.E. explained that she woke up and
“realized that [she] was in [her] momma's
bed.” Id. at 64. She saw “that [Cotton
was] naked and [she] was naked, ” so she “put on
[her] clothes and then [she] went to the bathroom and [she]
sat down and [she] cried.” Id.
who was eight at the time of trial, testified that Cotton
began sexually assaulting him when he was five. He said that
all the assaults took place at the new house on 25th Street.
K.J. recalled Cotton putting “his penis in [K.J.'s]
butt” five times, being forced to “suck on
[Cotton's] penis. . .more than three times, ” and
experiencing Cotton “put[ting] his mouth on