February 22, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 14-cv-965 - Nancy Joseph,
Ripple, Manion, and Brennan, Circuit Judges.
MANION, CIRCUIT JUDGE.
convicted Jeremiah Felton of first degree intentional
homicide in Wisconsin state court for the death of his
three-month-old son, Jeremiah Felton Jr. (J.J.). The jury
heard testimony about the days leading up to J.J.'s
death, such as those who cared for and had contact with him,
including Felton. The jury also heard about Felton's
conversations with police, whom he told that J.J. had slipped
and hit his head in the bathtub, and with fellow jail inmate,
Douglas House, who testified that Felton said he had swung
J.J. into a bathroom door. J.J.'s treating physicians and
the medical examiner also testified about J.J.'s injuries
and cause of death, which two of the physicians stated, in
part, was due to shaking. The medical examiner concluded that
blunt force trauma was the cause of death. The jury found
sought post-conviction relief in the Wisconsin state court
based on ineffective assistance of counsel. In particular,
Felton cited his attorney's failure to object to the
prosecutor's statement during closing argument that House
could not receive a sentence modification for his testimony
in Felton's trial and failure to secure medical expert
testimony to rebut the State's witnesses. At the
post-conviction hearing, Felton's counsel testified as
well as three medical experts who concluded J.J. had not been
shaken and J.J.'s injuries were consistent with a fall of
two to four feet. The state trial court denied Felton's
petition, and the Wisconsin Court of Appeals affirmed the
denial. The Wisconsin Supreme Court summarily denied
Felton's petition for review. Felton sought a writ of
habeas corpus under 28 U.S.C. § 2254 in the district
court. The district court denied Felton's petition, and
Felton now appeals to this court. Because the decision of the
Wisconsin Court of Appeals was not unreasonable, Felton's
petition is denied.
Felton was born on February 16, 2008. During his short life,
J.J. lived with his mother, Sasha Fulton, and his father,
Jeremiah Felton, would sometimes stay with them. Sasha and
Felton were not married. They had renewed their relationship
in June 2008, and Felton moved with Sasha and J.J. to a new
apartment the weekend before J.J. died. On Sunday, June 1,
2008, J.J. spent the day at the park with various family
members, including his parents. Sasha took J.J. home around
sup-pertime while Felton stayed out until after midnight.
That night, Felton stayed with Sasha and J.J. at the new
apartment. Sasha's cousin, Bryiana Fulton, and her baby
also stayed there that night.
Day at the Apartment
next morning, while Felton slept, Sasha fed and played with
J.J. before going to work shortly before 9 a.m. Bryiana
sometimes cared for J.J., but that day, Sasha told her to
leave him with Felton. It was the first time Sasha left J.J.
in Felton's care for the day while she was at work.
Felton was home with J.J., different family members came in
and out of the apartment throughout the day. Bryiana left the
apartment sometime after 9 a.m. When she returned around
noon, Felton and J.J. were there along with Byrian Fulton
(Bryiana's brother) and Casey Fulton (Sasha's
brother). J.J. seemed to be acting normally at that time.
Bryiana gave him a bottle before leaving around 12:30 p.m.
Casey and Byrian left at the same time, and Felton remained
in the apartment with J.J. Sasha called Felton from work
about 2:30 or 3 p.m., and he told her that J.J. had been
sleeping all day.
fifteen-year-old cousin, Anthony Hendrix, came by the
apartment sometime after his school let out for the day at
2:30 p.m. There he found Felton alone in the apartment with
J.J., who was sleeping on the couch while Felton was getting
out of the shower. Hendrix testified that J.J. cried multiple
times while he was there, and that both he and Felton picked
him up. Hendrix put J.J. down in his crib and patted his
back. J.J. stopped crying, and Hendrix left soon after.
Sasha returned home from work around 5:25 p.m., she checked
on J.J., who was sleeping. She let him sleep; J.J. was a
fussy baby, and Sasha did not want to disturb him. Bry-iana
came back around the same time. Felton asked Sasha to drive
him to his friend's graduation. After eating a sandwich,
Sasha borrowed Bryiana's car to drive Felton to the
graduation ceremony and returned about a half hour to forty
minutes later. While Sasha and Felton were gone, Bryiana
stayed at Sasha's apartment with her son and J.J. When
Sasha returned, she did not check on J.J. right away, but let
him sleep and began cleaning the kitchen and bathroom. About
fifteen minutes later, she heard J.J. make a funny noise and
went to check on him. There she found J.J. with one eye open
and one eye shut. Sasha cried out that something was wrong.
Bryiana thought that Sasha was overreacting until she saw
J.J. She then told Sasha to call 911 while she attempted to
was taken by ambulance to St. Vincent Hospital in Green Bay
around 7:30 p.m. Dr. John Taylor, pediatric critical care
physician, first saw J.J. shortly after he arrived at the
hospital. Dr. Taylor intubated J.J. and ordered x-rays and a
CT scan. The CT scan revealed J.J. had a skull fracture just
above and slightly behind his right ear, specifically his
right parietal bone, bleeding under his skull and in his
brain, and retinal hemorrhages. Dr. Taylor told Sasha and
Felton he was concerned someone had hurt J.J. because there
was no record of a car accident or someone falling or
tripping down the stairs with their son, and J.J. was not yet
rolling or moving by himself. Sasha told Dr. Taylor that the
day before while she had been carrying J.J. in her left arm,
J.J. bumped his head as she walked through the door. Felton
did not give any explanation to Dr. Taylor.
number of family members came to the hospital that night.
Some of them played in the halls, including Felton, who
pushed Casey around in a wheelchair. Hospital staff asked
them to leave because they were too noisy and disruptive.
Felton and Sasha were allowed to stay, and they fell asleep
in the family waiting room.
same night, the hospital or Brown County Human Services
contacted the police about J.J.'s serious injuries and
the lack of explanation for them. Detective Robert Haglund
and Detective Walter Wickman of the Green Bay Police
Department arrived at the hospital around 3 a.m. on Tuesday,
June 3. Haglund woke Felton and Sasha. He interviewed Sasha
with a human services representative present, and Wickman
interviewed Felton in a separate room. There Felton told
Wickman that he did not know what could have happened because
J.J. was with him or people they knew. He told Wickman about
Sasha bumping J.J.'s head into the door, but provided no
other explanation about how J.J. might have sustained his
injuries. After interviewing Sasha, Haglund joined Wickman
and Felton and asked Felton what had happened. After
confirming Felton told him the same thing he had just told
Wickman, Haglund and Wickman left the hospital.
returned to the hospital the next day and spoke with various
family members, including Bryiana and Hen-drix, asking them
what might have happened to J.J. He learned about the move to
the new apartment on Friday and Saturday and the day at the
park on Sunday. At the end of his interviews, Haglund asked
the family, including Felton, Sasha, and Bryiana, to be quiet
because they were being noisy playing up and down the halls.
Haglund also told them he believed one of the family members
was responsible for J.J.'s injuries and his prime
suspects were Felton, Bryiana, and Sasha because they had
been alone with J.J. on Monday. Haglund also advised Felton
to check in with his probation officer as he was required to
do if he spoke with law enforcement.
at the hospital, Felton stated more than once, "I just
don't want to go to jail." In one instance, Bryiana
testified Felton expressed frustration over what he thought
was a lack of information from doctors, and he did not want
to hit the doctor and go to jail.
J.J.'s Death and Felton's Conversation with Police
and Fellow Inmate
condition worsened, and he died from his injuries on June
5th. Shortly after his son's death, Felton went to the
Brown County Jail on a probation hold. On June 9, 2008,
Felton asked to talk with police and spoke with Haglund.
Felton gave Haglund a statement, which Haglund typed and
Felton read and signed. In that statement, Felton recounted
that around 2 p.m. on the day J.J. was rushed to the
hospital, "I got in the bathtub with my baby and started
giving him a bath. There was only two inches of water. He was
sitting between my legs and his butt slipped forward and his
head came backwards and his head hit the bottom of the tub
between my legs. His right ear went in the water, but his
face didn't go under the water. He started crying. I
wiped him off, got him dressed, and gave him a bottle, patted
him to sleep while he was lying on the couch." Felton
told Haglund he felt it in his legs when J.J. hit the bottom
of the tub and J.J. hit the tub "kind of hard."
Felton said he was going to tell Haglund about this in the
hospital, but Haglund made him nervous.
spoke again with Felton on June 12th telling him the doctors
said that the slip in the tub could not have caused
J.J.'s injuries. When Haglund left the interview room,
Felton stood by the door trying to listen to what was being
said outside the room, which Haglund stated witnesses
typically do not do. After speaking with Felton on June 12th,
Haglund sent the case file over to the District
Attorney's Office recommending Felton be charged with
first degree intentional homicide for J.J.'s death. On
June 13, 2008, the Green Bay Police Department issued a press
release about its request and stated J.J. had suffered a
skull fracture from blunt force trauma. The press release did
not say where the fracture was located on the skull.
Douglas House, one of Felton's fellow inmates at the
Brown County Jail, sent police a request form, otherwise
known as a "kite," dated June 13, 2008. House had
nine to ten prior convictions and had a reputation as both a
jailhouse lawyer and a snitch. House's kite stated,
"I have conclusive evidence to convict Jeremiah Felton,
Sr. in the death of his infant son, Junior. That was caused
by right side trauma to head behind right ear. Will only come
out if called out as an attorney visit."
spoke with House on June 16th. (It was the not the first time
Haglund and House spoke with one another; they had previously
talked about other cases.) House told Haglund that when
Felton approached him, Felton had not yet been charged with
J.J.'s death, and they discussed the time constraints for
Felton's probation hold. After that, Felton told him
about J.J. House told Haglund that Felton had told him that
J.J. was getting on his nerves, so he swung J.J. into the
bathroom door hitting the right side of J.J.'s head
behind his ear. House also asked Haglund to look into whether
the police were harassing his children.
spoke again with Haglund on June 23rd. Haglund told House
that the police were watching another house near his
children. House, in turn, told Haglund that Felton told him
that the police questioned him about J.J. and he planned to
blame it on his girlfriend's sister. In addition to
telling Haglund about Felton, House asked Haglund if he could
look into police harassing his son and daughter. Haglund
checked into this and later told House that the police were
not watching his kids, but were watching a nearby house.
Other Criminal Trial Testimony
was charged with first degree intentional homicide in
J.J.'s death, and the case proceeded to trial. Several
witnesses, including Sasha and Felton's mother, testified
that J.J. was a fussy baby. On one occasion, Bryiana
"popped" J.J. and her son on their diapers when
they were "both a little crabby." Sasha testified
that she did not like that Bryiana spanked J.J., but she was
very close with her cousin and trusted her to care for J.J.
As for Felton, Sasha and others testified that he was good
with his children and nieces and nephews, and they ...