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Felton v. Bartow

United States Court of Appeals, Seventh Circuit

June 18, 2019

Jeremiah Felton, Petitioner-Appellant,
v.
Bryan Bartow, Respondent-Appellee.

          Argued February 22, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-cv-965 - Nancy Joseph, Magistrate Judge.

          Before Ripple, Manion, and Brennan, Circuit Judges.

          MANION, CIRCUIT JUDGE.

         A jury 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 Felton guilty.

         Felton 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.

         I. A. Criminal Trial[1]

         J.J. 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.

         1. The Day at the Apartment

         The 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.

         While 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.

         Sasha's 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.

         When 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 revive J.J.

         2. At the Hospital

         J.J. 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.

         A 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.

         That 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.

         Haglund 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.

         While 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.

         3. J.J.'s Death and Felton's Conversation with Police and Fellow Inmate

         J.J.'s 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.

         Haglund 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.

         Meanwhile, 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."

         Haglund 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.

         House 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.

         4. Other Criminal Trial Testimony

         Felton 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 ...


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