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Hurley v. Jess

United States District Court, E.D. Wisconsin

August 22, 2019

JOEL M. HURLEY, Petitioner,
v.
CATHY A. JESS, [1] Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         1. Facts and Procedural History

         In September of 2010, fifteen-year-old MCN told her mother that, when she was in elementary school, her then-stepfather, Joel M. Hurley, would lay in bed with her and sexually assault her with his hand. (ECF No. 8-15 at 94.) MCN's mother and Hurley had been divorced for years and, although MCN could recall certain details of the assaults, she was unable to recall many details as to when the assaults occurred. Other than recalling that the assaults occurred after the family had moved into a newly built home but before she entered middle school in fifth grade, she could not be more specific. (ECF No. 8-15 at 96, 110, 116.) Other evidence demonstrated that the family moved into the home in early-2003 (ECF No. 8-16 at 91), and MCN would have begun fifth grade in late-2005.

         MCN also reported other incidents of a sexual nature involving Hurley. In one, Hurley chased her around the house in a playful manner, caught her, and took off her clothes. She did not recall the context of this incident, but it might have been related to getting her to take a bath or ready for bed. (ECF No. 8-15 at 112.) In middle school, Hurley would weigh her naked, and would sometimes carry her there by putting her on his shoulders while she was naked.[2] (ECF No. 8-15 at 98-99.) And there was one last instance where he got into the shower with her. (ECF No. 8-15 at 97.) MCN was naked but Hurley was wearing his underwear. Hurley asked MCN if she would tell her mother about it and she said she would. (ECF No. 8-15 at 97-98.) But she was afraid and did not report it until she was 15.

         In July 2011, Hurley was charged with one count of repeated sexual assault of a child occurring between 2000 and 2005. (ECF No. 18.[3])

         After MCN accused Hurley, his sister contacted law enforcement and reported that, when she was between eight and ten years old, Hurley repeatedly sexually assaulted her. These incidents occurred in the early to mid-1980s, roughly 20 years before the sexual assault of MCN, when Hurley was about 12 to 14 years old.

         Over Hurley's objection, his sister was allowed to testify about Hurley's alleged sexual assault of her. Prior to her testimony, the court instructed the jury as follows:

Members of the Jury, evidence will now be presented regarding other conduct of the defendant for which the defendant is not on trial, specifically evidence will be presented that the defendant engaged in sexual intercourse with Janell Goldsmith. Sexual intercourse means any intrusion however slight by any part of a person's body or of any object into the genital or anal opening of another. Emission of semen is not required.
If you find this conduct did occur, you should consider it only on the issues of opportunity and method of operation. You may not consider this evidence to conclude that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that trait or character with respect to the offense charged in this case.
The evidence is received on the issues of, first, opportunity, that is whether the defendant had the opportunity to commit the offense charged; and second, method of operation.
You may consider this evidence only for the purposes I have described giving it the weight you determine it deserves. It is not to be used to conclude that the defendant is a bad person and for that reason is guilty of the offense charged.

         (ECF Nos. 8-15 at 170 - 8-16 at 4.)

         Hurley testified and denied any incident where he chased MCN and removed her clothes, (ECF No. 8-16 at 107) denied ever weighing MCN nude (except for one instance where MCN's mother weighed her nude and he was present) (ECF No. 8-16 at 108), denied ever carrying MCN on his shoulders while she was naked (ECF No. 8-16 at 109-10) and denied ever touching MCN inappropriately (ECF No. 8-16 at 113-14, 121-22). He was also asked if he recalled the conduct his sister alleged. He said he did not. (ECF No. 8-16 at 98, 100.) In his closing argument, the prosecutor said: “When the defendant testified, he was asked by his -- by the attorney regarding [his sister] he said well, do you recall any of these incidents with [your sister] ever happening? And his answer was no. The question wasn't did you do this or not, it was do you recall? That's different than it didn't happen.” (ECF No. 8-17 at 25-26.)

         The prosecutor also referred to Hurley's sister's testimony in his closing: “one of the purposes you can use [her] testimony for is the defendant's opportunity, his opportunity to commit the crime. The defendant's opportunistic, took advantage of two elementary girls, just like the prowling cat taking advantage of that mouse in the box. Opportunity, Ladies and Gentlemen. A preying cat, a vulnerable mouse.” (ECF No. 8-17 at 31.)

         On January 19, 2012, the jury convicted Hurley and the court sentenced him to 18 years of initial confinement and seven years of extended supervision. (ECF No. 8-1.)

         Hurley sought post-conviction relief on a variety of grounds. (See ECF No. 8-3.) The circuit court granted the motion, finding that the prosecutor's closing argument was improper when he suggested that Hurley never denied his sister's allegations. The prosecutor knew that Hurley, in fact, had denied his sister's allegations, which denial was documented in a police report. (ECF No. 8-3 at 103.) The circuit court denied Hurley's other claims for relief.

         The state and Hurley both appealed. (ECF No. 1-3.) The Wisconsin Court of Appeals concluded that the complaint violated due process and that the circuit court erred in admitting the sister's allegations. (ECF No. 1-3, ¶3.) It did not address the parties' other arguments, including the claim on which the circuit court granted relief.

         The Wisconsin Supreme Court granted review and reversed the court of appeals. State v. Hurley, 2015 WI 35, 361 Wis.2d 529, 861 N.W.2d 174. Two justices dissented, agreeing with the court of appeals that the circuit court erroneously exercised its discretion in admitting the other acts evidence.

         Hurley then turned to this court with a petition for a writ of habeas corpus. In his petition he presents four arguments: (1) the time period alleged in the amended complaint and information is overbroad, depriving Hurley of his right to due process; (2) his lawyer was ineffective for not seeking to dismiss the charges based on insufficient notice; (3) the admission of his sister's allegations violated his right to due process; and (4) the prosecutor's closing argument violated due process.

         2. Standard of Review

         A federal court may consider habeas relief for a petitioner in state custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Following the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court generally may grant habeas relief only if the state court decision was “either (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)).

         3. Analysis

         a. Sufficiency of Amended Complaint and Information

         “In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation….” U.S. Const. amend. VI. Incorporated into and made applicable to the states by way of the Fourteenth Amendment's due process clause, this “guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense.” Kaczmarek v. Rednour, 627 F.3d 586, 596 (7th Cir. 2010); see also Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”). This includes that a defendant be informed “with reasonable particularity” as to the “time, place, and circumstances” of the alleged offense. United States v. Cruikshank, 92 U.S. 542, 558 (1875).

         Hurley was charged with one count of repeated sexual assault of a child. Wis.Stat. § 948.025 (2005-06). The Wisconsin legislature enacted this statute “to address the problem that often arises in cases where a child is the victim of a pattern of sexual abuse and assault but is unable to provide the specifics of an individual event of sexual assault. The purpose of the legislation was to facilitate prosecution of offenders under such conditions.” Hurley, 2015 WI 35, ...


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