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Cotton v. Eckstein

United States District Court, E.D. Wisconsin

June 29, 2018

MICHEAL P. COTTON, Petitioner,


          J.P. Stadtmueller U.S. District Judge.

         Petitioner, 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.


         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 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).

         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 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 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. 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., 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 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).

         2. BACKGROUND[1]

         In 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 Milwaukee.

         Cotton 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., were dating.

         As to 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 to explain,

Q: And what happened after Miguel told you to open your mouth?[2]
A: He shoved his penis in my mouth.
Q: And what did he do-what happened after he put his penis in your mouth?
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?
A: Yes.
Q: And what happened then? . . .
A: He made me swear not to tell anybody or he was going to kill me.

Id. at 59, 82-83.

         As to 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.

         As to 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.

         K.J., 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 ...

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