Freytes-Torres v. Foster
DECISION AND ORDER signed by Judge Lynn Adelman on 10/18/16 DENYING Laughrins petition for a writ of habeas corpus. The Clerk of Court shall enter final judgment. I find that petitioner has not made the showing required by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a certificate of appealability. (cc: all counsel, via USPS to petitioner)(dm) Modified on 10/18/2016 (blr).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 15-C-0247
BRIAN FOSTER, Warden,
Green Bay Correctional Institution
DECISION AND ORDER
Xavier Freytes-Torres petitions for a writ of habeas corpus under 28 U.S.C.
Following a two-day jury trial, Freytes-Torres was convicted in Brown County
Circuit Court of felony intimidation of a victim, Wis. Stat. § 940.45(3), and first-degree
sexual assault of a child under age 16 by use or threat of force or violence, Wis. Stat.
§ 948.02(1)(c). The Wisconsin Court of Appeals summarized the facts as follows:
Freytes-Torres was a friend of the victim’s mother. In January 2011, while
her mother and her mother’s boyfriend were in a bedroom at the
boyfriend’s residence, Freytes-Torres and the victim were in the living
room watching a movie on the sofa. Freytes-Torres allegedly touched the
victim’s breasts and vagina under her clothes, and then pulled down her
pants and had penis to vagina intercourse while he lay on top of her
holding her down. The victim testified Freytes-Torres told her if she
“snitched or anything” he would do something to her, which she
interpreted as meaning he would kill her. This occurred when the victim
was twelve years old. She testified she did not tell her mother because
she was scared.
A second assault allegedly occurred at the victim’s family’s apartment
when she was home alone with her younger sister, who was asleep in her
mother’s bedroom. The victim was on the computer chatting with a friend
and listening to music when Freytes-Torres came into the apartment
unannounced and without permission. He started talking to the victim and
then grabbed her and pulled her into another room where he touched her
and then had her lie on a bed where he removed her pants and had penis
to vagina intercourse with her. As he did so, he held the victim’s hands
above her head. When the victim tried to scream for her sister, he
covered her mouth. The victim stated Freytes-Torres stopped and left
immediately when the phone rang and he could see from the caller
identification that it was her mother.
A third alleged incident occurred when Freytes-Torres once again entered
the apartment without permission. The victim said he touched her with his
hands but she could not remember the specific places. She also thought
he had sexual intercourse with her on the couch.
Two to three weeks after the third incident, the victim told her mother and
then a social worker at school, who contacted police. Police subsequently
seized the comforter from the bed where the victim said the intercourse
occurred and obtained buccal swabs from the victim and Freytes-Torres.
The comforter and buccal swabs were submitted to the crime lab and
eight stains were located on each side of the comforter. Each stain was
initially tested with a presumptive test for semen. All but one was
negative. A cutting was taken from the stain that tested positive and DNA
was consistent with both the victim and Freytes-Torres. Freytes-Torres
was identified as the contributor to the single-source semen portion of the
Freytes-Torres testified in his own defense. He denied having any type of
sexual relations with the victim. He admitted the semen found on the
comforter was his, but claimed it came from wiping his penis on the
comforter after masturbating when recalling a moment when he saw the
victim naked while changing clothes. He also claimed the victim had
several motives for falsifying her testimony.
The jury found Freytes-Torres guilty of felony intimidation of a victim, and
first-degree sexual assault of a child under age sixteen, by use or threat of
force or violence, which occurred during the second incident at the family
apartment. He was acquitted of the sexual assaults alleged in the first and
third incidents, as well as two charges of burglary with intent to commit a
State v. Freytes-Torres, No. 2012AP2597-CRMN, slip op. at 2–3 (Wis. Ct. App. Aug. 12,
On direct appeal, Freytes-Torres’s appellate counsel filed a no-merit brief with
the Wisconsin Court of Appeals, and Freytes-Torres filed his own reply. The Wisconsin
Court of Appeals summarily affirmed the conviction. Freytes-Torres petitioned to the
Wisconsin Supreme Court, but that court denied review.
In his federal habeas petition, Freytes-Torres raises three claims.
contends that comments and conduct of the prosecutor during the trial deprived him of
his due-process right to a fair trial, and also that trial counsel was ineffective in failing to
move for a mistrial based on the prosecutor’s conduct.
Second, he contends that
defense counsel was ineffective in failing to retain an independent DNA expert. Third,
he contends that defense counsel was ineffective in three other respects: failing to
object to a jury instruction on use or threat of force or violence, failing to object to the
court’s failing to require the jury to determine the exact date on which the sexual assault
occurred, and being generally unprepared for trial.
A. Comments and Conduct of the Prosecutor
Freytes-Torres contends that the prosecutor engaged in misconduct during two
phases of the trial: defense counsel’s direct examination of Freytes-Torres, and closing
During the state’s case, it introduced evidence that Freytes-Torres’s semen was
found on the comforter for the bed on which, according to the victim’s testimony, the
second sexual assault occurred.
When Freytes-Torres testified in his defense, he
stated that the reason his semen was on the comforter was because, after he saw the
victim naked, he masturbated on the floor next to the bed and wiped his penis on the
Defense counsel then asked Freytes-Torres why he did not go to the
bathroom to “relieve himself.” ECF No. 12-2 at 81. At that point, defense counsel
objected to the prosecutor’s demeanor. Outside the presence of the jury, the court
heard arguments on the objection.
Defense counsel argued that, during his direct
exam, the prosecutor was sitting in his chair and smirking at the questions. Defense
counsel argued that the jury could observe the prosecutor’s conduct and that it
conveyed to the jury that the prosecutor thought the testimony was unbelievable.
Defense counsel asked the court to instruct the prosecutor to “knock it off,” but he did
not ask for a mistrial or a curative instruction. Id. at 84. In response, the prosecutor
stated that he did not do anything prior to defense counsel’s use of the phrase “relieve
yourself.” The prosecutor then admitted that at that point, he turned so that the jury
could not see him and smiled at defense counsel.
The court clarified for the record that it “heard something” from the prosecutor.
Id. at 85. According to the court, the prosecutor “turned his chair away from the jury, his
back to the jury, and smiled at a statement as to a location of potentially where the
defendant should have masturbated or why he didn’t masturbate at one location instead
of another.” Id. The court noted that it was possible that some of the jurors saw the
prosecutor smile, but it concluded that the prosecutor’s smirk did not taint the jury. The
court stated that it would not give a curative instruction but would simply instruct the
jurors, as it would have in the ordinary course, “that they are the sole judges of the
credibility, the believability, of all testimony.” Id. at 86. Defense counsel agreed with the
The second incident of alleged prosecutorial misconduct occurred during closing
arguments. During his argument, the prosecutor repeatedly argued to the jury that the
victim was more credible than Freytes-Torres.
Freytes-Torres contends that this
argument amounted to the prosecutor’s vouching for the victim’s credibility.
The Wisconsin Court of Appeals resolved Freytes-Torres’s claim of prosecutorial
misconduct on the merits. Therefore, I may grant relief on this claim only if the court’s
decision was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United States, or was based on
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. 28 U.S.C. § 2254(d). The petitioner does not contend that the
court of appeals’s decision was based on an unreasonable determination of the facts.
The relevant Supreme Court law consists of Donnelly v. DeChristoforo, 416 U.S. 637
(1974) and Darden v. Wainwright, 477 U.S. 168 (1986).
Under these cases, a
prosecutor’s improper remarks or conduct can be grounds for overturning a conviction if
the remarks or conduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden, 477 U.S. at 181; Donnelly, 416 U.S. at
I begin with Freytes-Torres’s argument that the prosecutor engaged in
misconduct during closing arguments by vouching for the victim’s credibility. There are
two types of impermissible vouching: a prosecutor may not express his or her personal
belief in the truthfulness of a witness, and a prosecutor may not imply that facts not
before the jury lend a witness credibility. United States v. Adkins, 743 F.3d 176, 187
(7th Cir. 2014).
However, the rule against improper vouching does not prevent a
prosecutor from commenting on a witness’s credibility, and the prosecutor may do this
so long as the comments reflect reasonable inferences from the evidence adduced at
trial rather than personal opinion. Id.; see also London v. Clements, 600 F. App’x 462,
467 (7th Cir. 2015) (“Inferences drawn from the evidence, including inferences about
witness credibility, are fair game for [a prosecutor’s] closing argument.”); United States
v. Alexander, 741 F.3d 866, 871 (7th Cir. 2014) (“A prosecutor may properly comment
on the credibility of a witness so long as the comment reflects reasonable inferences
from the evidence rather than personal opinion.”). A prosecutor may also, in the course
of commenting on a witness’s credibility, “appeal to jurors’ common sense.” Alexander,
741 F.3d at 871; London, 600 F. App’x at 467.
In the present case, all of the prosecutor’s remarks during closing arguments
about the victim’s credibility were based on the evidence and appeals to the jurors’
See ECF No. 12-2 at 134–54 & 178–87.
The prosecutor never
expressed a personal belief about the victim’s credibility, and he did not make
statements that implied evidence not before the jury lent the victim credibility.
Accordingly, the prosecutor’s remarks during closing do not support the argument that
the Wisconsin Court of Appeals rendered a decision that was contrary to, or involved an
unreasonable application of, clearly established Supreme Court law.
With respect to the prosecutor’s smirking during defense counsel’s direct
examination, the trial court observed what happened and determined that, because the
prosecutor had turned his back to the jury before smirking, the jury probably did not see
it. The court also determined that, in any event, the conduct was not so serious that it
tainted the jury. Defense counsel did not think that the conduct was serious enough to
warrant a mistrial or a curative instruction.
Rather, he thought that the court’s
admonishing the prosecutor to behave more professionally during the rest of the direct
examination was sufficient. After defense counsel brought the matter to the court’s
attention, the prosecutor complied. Given this record, the Wisconsin Court of Appeals
reasonably concluded that the prosecutor’s single smirk during a question about where
the defendant could have masturbated did not deprive the defendant of a fair trial.
Freytes-Torres also contends that his defense counsel was ineffective in failing to
move for a mistrial after the prosecutor smirked at the question about masturbation. To
succeed on a claim of ineffective assistance of counsel, a defendant must show that
counsel’s performance was deficient and that the deficient performance resulted in
prejudice. See Strickland v. Washington, 466 U.S. 668 (1984). To show prejudice, a
defendant must show a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. Id. at 694. Here, Freytes-Torres cannot
show prejudice. As noted, the trial court found that the prosecutor’s smirk did not taint
the jury and that the court’s ordinary instruction about the jurors’ being the sole judges
of credibility would be sufficient to cure any effect of the smirk. Thus, there is no
reasonable probability that, had defense counsel moved for a mistrial, the court would
have granted the motion.
B. Trial Counsel’s Failure to Retain an Independent DNA Expert
Freytes-Torres next contends that his trial counsel was ineffective in failing to
retain an independent expert to review the crime lab’s DNA results, perform an
independent test of the DNA found on the comforter, and testify at trial. As stated
above, to show that trial counsel was ineffective, Freytes-Torres must show that
counsel’s performance was deficient and that his deficient performance resulted in
prejudice. See Strickland v. Washington, 466 U.S. 668 (1984). To show prejudice,
Freytes-Torres must show a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. Id. at 694. The Wisconsin Court of
Appeals adjudicated this claim of ineffective assistance on the merits. Therefore, the
standard of review in 28 U.S.C. § 2254(d) applies.
In rejecting this claim, the court of appeals determined that Freytes-Torres’s
contention that an independent DNA expert would have helped his case was
speculative. The court also noted that Freytes-Torres admitted at trial that he wiped his
penis on the comforter, and that there was thus no dispute at trial that the semen found
on the comforter was his.
Construing Freytes-Torres’s pro se submissions liberally, I conclude that he is
arguing that an independent DNA expert could have assisted his defense in two
respects. First, if the expert reviewed the state’s analysis of the semen stain on the
comforter before trial and identified reasons for thinking that the semen was not his,
then Freytes-Torres would have changed his trial strategy. Instead of taking the stand
and admitting to wiping his penis on the comforter, Freytes-Torres would have remained
silent and relied on the independent expert’s testimony to create reasonable doubt
about whether the semen was his. Second, an independent expert could have testified
about whether the source of the victim’s DNA, which according to the state’s expert was
mixed with Freytes-Torres’s DNA, was from a source other than vaginal secretions,
such as skin cells. Testimony that the victim’s DNA was from skin cells rather than
vaginal secretions could have aided Freytes-Torres’s defense by supporting his claim
that he did not have vaginal intercourse with the victim but instead masturbated near the
bed and wiped his penis on the comforter. The state’s DNA expert testified that she
could not offer an opinion as to the source of the victim’s DNA. She testified that it
“could be from anywhere,” including skin cells, saliva, urine, or vaginal secretions. See
ECF No. 12-1 at 211.
The problem with Freytes-Torres’s argument is that his claim that an independent
DNA expert could have supported his defense in either of these respects is speculative.
First, the state-court record contains nothing suggesting that an independent expert
could have identified any problems with the state’s DNA analysis or otherwise could
have created reasonable doubt about whether the semen stain on the comforter
contained Freytes-Torres’s DNA.
Second, the state-court record contains nothing
suggesting that an independent expert could have identified the source of the victim’s
DNA. Indeed, the state’s expert testified that DNA is the same throughout the body,
ECF No. 12-1 at 199, and that she could not identify the source of the victim’s DNA, id.
at 211. Thus, nothing in the record suggests that Freytes-Torres was prejudiced by trial
counsel’s failure to retain an independent DNA expert. It follows that the Wisconsin
Court of Appeals, in rejecting this ineffective-assistance claim as speculative, did not
render a decision that was contrary to, or involved an unreasonable application of,
Strickland. See Finch v. Sec’y, Dep’t of Corr., 643 F. App’x 848, 851–52 (11th Cir.
2016) (finding that habeas petitioner was not entitled to relief on claim that counsel was
ineffective in failing to retain independent DNA expert where petitioner did not provide
any evidence to support his speculative assertion that an independent expert would
have testified in a way that helped his defense); Martinez v. Tafoya, 13 Fed.Appx. 873,
876–77 (10th Cir. 2001) (same); Tafoya v. Tansy, 9 F. App’x 862, 871 (10th Cir. 2001)
(same); see also Patel v. United States, 19 F.3d 1231, 1237 (7th Cir. 1994) (“Where a
petitioner claims his trial counsel failed to call a witness, he must make a specific,
affirmative showing as to what the missing evidence would have been, and prove that
this witness’s testimony would have produced a different result.”).
C. Remaining Ineffective-Assistance Claims
Freytes-Torres contends that his trial counsel committed three other errors. First,
he contends that trial counsel rendered deficient performance by failing to object to the
trial court’s jury instruction on the “use or threat of force or violence,” which is an
element of the sexual-assault charge on which Freytes-Torres was found guilty.
According to Freytes-Torres, the jury instruction created a presumption that had the
effect of relieving the prosecution of its burden to prove this element of the offense. The
Wisconsin Court of Appeals rejected this claim on the merits, and thus the standard of
review in 28 U.S.C. § 2254(d) applies. I conclude that the court’s conclusion was not
contrary to, and did not involve an unreasonable application of, any Supreme Court
decisions. The trial court instructed the jury that, to find Freytes-Torres guilty of the
sexual-assault charge, it had to conclude that the state proved beyond a reasonable
doubt all three elements of the offense. See ECF No. 12-2 at 127. The court then
identified one of those elements as “the defendant had sexual intercourse with [the
victim] by the use or threat of force or violence.” Id. The court also instructed the jury
that “the use or threat of force or violence may occur at any time before or as part of the
sexual intercourse,” id. at 127–28, which was an accurate statement of Wisconsin law,
see State v. Hayes, 264 Wis. 2d 377, 391 (Ct. App. 2003). Thus, the court of appeals
reasonably concluded that the jury instruction did not have the effect of relieving the
prosecutor of the burden of proving an element of the offense, and that counsel did not
err in failing to object to the instruction.
Second, Freytes-Torres argues that counsel was ineffective in failing “to object to
the prosecutor with respect to the exact dates that [the sexual assault] was committed.”
See Br. in Supp. at 22, ECF No. 16. The Wisconsin Court of Appeals rejected this claim
on the merits, and thus the standard of review in 28 U.S.C. § 2254(d) applies. FreytesTorres appears to be arguing that proof of an exact date was relevant because it was
possible that he was on vacation or with his family in another part of the country on the
day of the offense. Id. However, at trial, Freytes-Torres did not present an alibi defense
of this nature. Rather, as noted, he admitted that he was in the victim’s apartment but
claimed that he did not have sexual intercourse with her. In any event, under Wisconsin
law, a prosecutor is not required to prove the exact date on which a sexual assault
occurred. See Thomas v. State, 92 Wis. 2d 372, 386 (1979). Thus, the Wisconsin
Court of Appeals reasonably determined that trial counsel’s failure to object to the lack
of an exact date was not deficient performance.
Finally, Freytes-Torres argues that his trial counsel was generally unprepared.
However, on direct appeal, the Wisconsin Court of Appeals independently reviewed the
record and determined that it did not support Freytes-Torres’s claim that trial counsel
was unprepared. Freytes-Torres has not shown that this determination was contrary to,
or involved an unreasonable application of, clearly established federal law, or involved
an unreasonable determination of the facts. Accordingly, Freytes-Torres is not entitled
to relief on this claim.
For the reasons stated, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED. The Clerk of Court shall enter final judgment. Pursuant to Rule 11
of the Rules Governing § 2254 Cases, I find that the petitioner has not made the
showing required by 28 U.S.C. § 2253(c)(2), and therefore I will not issue a certificate of
Dated at Milwaukee, Wisconsin, this 18th day of October, 2016.
s/ Lynn Adelman
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?