Little v. Foster

Filing 40

ORDER signed by Judge J.P. Stadtmueller on 11/15/2017: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING CASE; and DENYING certificate of appealability. (cc: all counsel, via mail to Antuan Valentino Little at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTUAN VALENTINO LITTLE,

v.

Petitioner,

Case No. 16-CV-805-JPS

WARDEN BRIAN FOSTER,
Respondent.

ORDER

Petitioner, Antuan Valentino Little (“Little”), was convicted of firstdegree sexual assault of a child and exposing a child to harmful materials
after a jury trial held in Milwaukee County Circuit Court. After being
denied postconviction relief by the Wisconsin courts, he now seeks a writ
of habeas corpus from this Court pursuant to 28 U.S.C. § 2254. (Docket #1).
After screening Little’s petition and evaluating his requests to remove
certain claims, see (Docket #12, #21, #34), two grounds for relief remain: (1)
ineffective assistance of counsel arising from a failure to introduce
evidence of the victim’s prior sexual assault allegation against another
man; and (2) denial of due process arising from the trial court’s failure to
order a new trial based on newly discovered evidence that the victim’s
father pressured her into testifying against Little at trial. The parties have
now fully briefed their respective positions. For the reasons stated below,
the Court finds that Little’s petition is without merit and must be denied.
1.

STANDARD OF REVIEW
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 claims 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

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means ‘objectively unreasonable, not merely wrong; even ‘clear error’ will
not suffice.’”) (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
Indeed, the habeas petition 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-bycase 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.
Section 2254(d) stops just short of “imposing a complete bar on federalcourt 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
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evidence presented. 28 U.S.C. § 2254(d)(2). The underlying state court
findings of fact and credibility determinations against the petitioner 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, however, an unreasonable
factual determination 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
As noted above, Little was convicted of first-degree sexual assault

of a child and exposing a child to harmful materials after a jury trial held
in Milwaukee County Circuit Court on January 27–29, 2010. He was
sentenced to eleven years in prison to be followed by six years of extended
supervision.
The victim, identified as “J.B.,” testified at Little’s trial. She stated
that in 2007, when she was only ten years old, Little forced her to rub his
penis wrapped in a sandwich bag to the point of ejaculation. This
occurred at some point between November 1, 2003 and August 30, 2005,
when she and her mother lived with Little in Milwaukee. Little also made
J.B. watch a pornographic video kept hidden under her mother’s bed on at
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least one occasion during the same time frame. These offenses occurred
when Little was left alone with J.B. and her siblings while their mother
was away at work during the day.
J.B. did not initially tell her mother about Little’s sexual misconduct
because she was afraid her mother would not believe her and she knew
that her mother loved Little. Rather than tell her mother, J.B. first told her
cousin in 2007 about the sexual misconduct. Her cousin then told her
uncle who, in turn, told her biological father, Humberto Rangel
(“Rangel”), who reported it to police in 2009, after J.B. came to live with
him upon his release from jail.
J.B. first disclosed the sexual abuse by Little to police in June 2007
while they were investigating an alleged sexual assault by another man,
Michael C., against her younger sister. When J.B. reported the incident to
Milwaukee Sensitive Crimes Police Officer Karla Lehman (“Lehman”), she
wrote a note imploring: “Please, please, please, please, please don’t tell my
mom,” alongside a drawing of a frowning face with tears falling. (Docket
#15-17 at 37). J.B. also drew a star on the note inside of which she drew a
heart with the words, “I love my mother and my dad.” Id. at 38. During
her interview with Lehman, J.B. accused both Little and Michael C. of
sexual assault.
Police referred J.B.’s 2007 allegations against Little and Michael C.
to the district attorney. However, neither man was charged. The district
attorney noted both that J.B. “had several inconsistencies in her story” and
that J.B. had recanted her allegations against Little. J.B. admitted that she
had intentionally lied to Lehman concerning Little’s assaults because “she
was angry with him.” (Docket #15-9 at 25). J.B. also told her mother later
in 2007 that she had lied and that Little had not abused her. J.B. recanted
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to her mother because she did not want her mother to feel bad. As
discussed further below, J.B. never recanted her allegations against
Michael C. See infra Part 3.1.
As noted above, J.B. started living with Rangel in June 2009 after he
was released from jail. Rangel took J.B. for a walk in early August and
asked whether Little did anything to her as his brother (and her uncle)
had reported. J.B. turned red and did not provide details but confirmed
that Little had sexually abused her. Rangel reported this to police and
took J.B. to the police station a few days later. Rangel told police that he
wanted “those guys that molested his daughter put in jail.” (Docket #15-9
at 28).
Lehman interviewed J.B. on August 19, 2009, at Rangel’s urging. At
trial, Lehman described J.B.’s demeanor and the details of her account as
being similar to her 2007 interview and to her trial testimony, which took
place the day before Lehman testified. Little’s theory of defense at trial
was that J.B. lied so she could live with her biological father, rather than
with Little and her mother.
On direct review, Little argued that his trial attorney was
ineffective for not introducing evidence under Wis. Stat. §§ 971.31(11) and
972.11(2)(b)(3) that J.B. falsely accused another man of sexual assault. This
was the same man, Michael C., who was investigated for sexually
assaulting her sister. The trial court summarily denied relief because Little
made an insufficient showing that J.B.’s sexual assault allegation against
Michael C. was false.1
In Wisconsin, postconviction relief may be sought simultaneously with a
direct appeal. Hence, the trial court first ruled on this claim before it reached the
Court of Appeals. See (Docket #15-21).
1

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The Wisconsin Court of Appeals agreed in a per curiam decision
issued January 3, 2013. The court, applying State v. Ringer, 785 N.W.2d
448, 460 (Wis. 2010), held that merely showing that Michael C. would
deny any wrongdoing and was not charged did not sufficiently allege that
J.B.’s 2007 sexual assault allegation against him was untrue. Without
more, the court held, “no reasonable jury would be able to conclude that
the prior allegations were, in fact, false.” (Docket #15-2 at 3). The
Wisconsin Supreme Court denied Little’s petition for review June 12, 2013.
On collateral review, Little moved for a new trial on the ground
that J.B.’s father, Rangel, admitted that he pressured her to testify at trial
against her wishes. Little presented an affidavit from Rangel stating that,
because he believed J.B.’s allegations against Little, he pressured her to
testify to ensure Little was convicted. The trial court denied the motion on
April 30, 2014, after holding that there was nothing in Rangel’s
uncorroborated affidavit to support the conclusion that J.B. lied at trial or
that there was a reasonable probability of a different verdict had Rangel
testified that he pressured his daughter to testify. The Wisconsin Court of
Appeals affirmed in a decision issued September 22, 2015, finding that
evidence of Rangel’s pressuring J.B. to testify against Little did not rise to
the level of a due process violation and Little failed to prove a reasonable
probability of a different outcome. The Wisconsin Supreme Court denied
Little’s petition for review on January 7, 2016.
Little filed this habeas corpus petition on June 24, 2016. Little
renewed his claims that trial counsel was ineffective for not introducing
evidence of J.B.’s supposed untruthful allegation of sexual assault against
Michael C., and that he was denied due process when the state courts

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would not grant him a new trial to introduce evidence that J.B.’s father
pressured her to testify against Little.2
3.

ANALYSIS
3.1

Ineffective Assistance of Counsel

Little theorizes that his lawyer was constitutionally ineffective for
failing to seek introduction of testimony from Michael C. regarding J.B.’s
allegedly untruthful allegations of sexual assault against him. Counsel is
afforded deference in making strategic litigation decisions. See Strickland v.
Washington, 466 U.S. 668, 694 (1984). In order to prove ineffective
assistance of counsel, the movant must show that counsel’s performance
was deficient and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. Moreover, it must be remembered that the Court’s
review is cabined by the deference it must pay to the Wisconsin Court of
Appeals’ decision on the claim. Knowles, 556 U.S. at 123. Under the
AEDPA, “establishing that a state court’s application of the Strickland
standard was ‘unreasonable’ is a tall task, and ‘only a clear error in
applying Strickland will support a writ of habeas corpus.’” McAfee v.
Thurmer, 589 F.3d 353, 356 (7th Cir. 2009) (quoting Allen v. Chandler, 555
F.3d 596, 600 (7th Cir. 2009)).
Because Little’s underlying claim has no merit, his counsel cannot
have been ineffective for failing to raise it. See Warren v. Baenen, 712 F.3d
1090, 1104 (7th Cir. 2013). Little has not shown that the Wisconsin Court of
Appeals erred in concluding that Michael C.’s testimony was inadmissible
Little also presented other unexhausted claims in his petition on which
he was not permitted to proceed. See (Docket #34). Further, Little attempted to
add several claims to his petition, but these were not previously exhausted and
he abandoned them. See (Docket #31).
2

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under Wisconsin’s rape shield law, Wis. Stat. § 972.11(2)(b). The Court of
Appeals reasoned as follows:
Little first argues that his lawyer ineffectively
represented him because his lawyer did not seek admission
of evidence that Jasmine B. previously made what he
characterizes as untruthful allegations that another man,
Michael C., had sexually assaulted her. “‘[I]n order to admit
evidence of alleged prior untruthful allegations of sexual
assault’. . .the circuit court must first conclude from the
proffered evidence that a jury could reasonably find that the
complainant made prior untruthful allegations of sexual
assault.” State v. Ringer, 2010 WI 69, ¶31, 326 Wis. 2d 351, 785
N.W.2d 448 (citation omitted). The fact that the alleged
perpetrator consistently denies an allegation is not sufficient
to establish that the prior allegation was untruthful. Id., ¶39.
Similarly, the fact that an alleged perpetrator was not
prosecuted does not establish that a prior allegation was
untruthful because a prosecutor has “‘broad discretion in
determining whether to charge an accused.’” Id., ¶40
(citation omitted).
According to an incident report by the Milwaukee
Police, Jasmine B. told the police that she was sexually
assaulted by Michael C. Ten years old at the time she
reported the offenses, Jasmine B. provided a graphic account
of Michael C.’s assaults six years earlier, which occurred
when she was only four years old. Jasmine B. has
consistently maintained that Michael C. assaulted her,
although she has at times been unwilling to talk about the
assaults. Little contends that the fact that Michael C. was not
prosecuted undermines Jasmine B.’s allegations, particularly
because the prosecutor noted that there were some
inconsistencies in her accounts of the assaults. Ringer
squarely rejected this line of argument. See id., ¶40 (nonprosecution of an alleged offense does not establish that a
prior allegation was untruthful because a prosecutor has
broad discretion in determining whether to charge). Stated
differently, “[t]he intrinsic veracity of the complainant’s
[prior] accusations should not be confused with the State’s
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inability to meet its burden of proof for a criminal
conviction.” See People v. Alexander, 452 N.E.2d 591, 595 (Ill.
App. 1 Dist. 1983). The circuit court properly denied Little’s
postconviction argument that the circuit court should have
admitted evidence that Jasmine B. made what he
characterizes as prior untruthful allegations of sexual assault
against another man on the grounds that no reasonable jury
would be able to conclude that the prior allegations were, in
fact, false.
(Docket #15-2 at 2–3).
The Wisconsin appellate court decision was not erroneous. Little
complains that it was impossible for him to show that J.B. was untruthful
in her allegations against Michael C., as they rested “solely on the
credibility of the complainant” and there was no physical evidence or any
witness to corroborate her statements. (Docket #20 at 6). In Little’s view,
the Wisconsin courts held him to too high a standard—they required him
to actually prove that J.B.’s allegations were false, rather than simply
consider whether a reasonable jury could so find, and they required him
to produce independent evidence to do so. See id. at 6–7. Little believes
that Michael C.’s denial of wrongdoing, coupled with the prosecutor’s
decision not to institute charges against him because of inconsistencies in
J.B.’s story, could lead a reasonable jury to disbelieve J.B.’s accusations
against Michael C. Id. at 7.
At the outset, Little misconstrues the state court’s application of the
law. The Wisconsin Court of Appeals clearly acknowledged that the
relevant standard was whether a reasonable jury could find J.B.’s
accusations false, not whether Little had proven them to be demonstrably
false. See (Docket #15-2 at 2). The real question, then, is whether the court
unreasonably determined that this standard was not met.

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There existed more than sufficient evidence for the Wisconsin
Court of Appeals to reach its conclusion. First, the mere fact that Michael
C. would deny committing the prior assault is insignificant, given that
alleged perpetrators often deny wrongdoing. Ringer, 785 N.W.2d at 460.
Second, J.B. has never recanted her 2007 allegation against Michael C. See
id. (“The fact that she has never recanted her allegations weighs against a
jury’s finding that the allegations were untruthful.”). In fact, she repeated
it to others in subsequent years, although she was at times reluctant to
discuss the matter. Third, while charges were not brought against Michael
C., this does not undermine J.B.’s accusations. As observed in Ringer,
prosecutorial decisions are influenced by many considerations beyond the
truthfulness of the accusations. Id. The standard of proof in a criminal trial
is high, and the prospect of not meeting it was raised by inconsistencies in
J.B.’s telling of the assaults. Even so, J.B. has never recanted her allegations
against Michael C., and both her mother and her biological father, Rangel,
believed that she was assaulted by Michael C.
Little offers only his competing view of the facts, which he deems
to raise the possibility that a jury could find in his favor. See (Docket #29 at
2). He was not required to show irrefutably that J.B. lied, but his argument
does not support even the lesser conclusion that it was more likely than
not that she lied. See Ringer, 785 N.W.2d at 458. Little’s own belief that J.B.
lacked credibility is simply inadequate under Wisconsin law to support
the admissibility of Michael C.’s testimony.
The Wisconsin Court of Appeals correctly held that Little failed to
show that “a jury, acting reasonably, could find that it is more likely than
not that [J.B.] made prior untruthful allegations of sexual assault.” Id. Had
defense counsel tried to introduce this evidence at trial, it would have
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been excluded under Wisconsin’s rape shield law. State v. Moats, 457
N.W.2d 299, 315 (Wis. 1990). Because this Court agrees with the state
courts that Michael C.’s testimony would be inadmissible under
Wisconsin’s rape shield law, it also concurs that trial counsel was not
ineffective for failing to seek to introduce it.3
3.2

Due Process Violation

Little’s other ground for relief is based primarily on an affidavit he
obtained from J.B.’s father, Rangel. Rangel averred that he pressured J.B.
to testify against Little at trial. Rangel’s affidavit states, in relevant part,
that he “believed J.B.’s allegations against Mr. Little, so [he] made sure
that Little, got charged with sexual assault,” that “J.B. was unwilling to
testify against [Little],” and that “[o]n Jan 28th, 2010 [Rangel] coerced, and
persuaded J.B. into testifying against Little.” (Docket #15-9 at 36).
Little believes that this newly discovered evidence shows that J.B.’s
statements were coerced and therefore false, and that this undermines the
case against him when considered with other evidence, including J.B.’s
recantation, her inconsistent statements about the assaults, and
photographs introduced at sentencing of J.B. posing with Little and
Little complains that he was denied a hearing in state court during which
he could have questioned counsel about his failure to inquire with Michael C.
about the sexual assault allegations. (Docket #20 at 9). Because this Court, like the
state court, finds that the underlying claim is meritless, counsel’s reasons for his
decision not to question Michael C. on this topic are immaterial. Additionally, to
the extent Little believes that testimony about the allegations against Michael C.
was admitted at trial, prejudicing him, see id.; (Docket #39 at 4–6), the record
citation he provides does not support his position. In the portion of the trial
transcript Little cites, the witness testified that J.B. had made sexual assault
allegations against another person, but their truth or falsity was never discussed.
See (Docket #15-17 at 62–63). The testimony was offered merely to give context to
the 2007 investigation. There is no suggestion that the jury believed these other
allegations or that they had any effect on Little’s case.
3

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Michael C. from 2009, apparently showing that she liked the men. As a
result, he contends that the trial court wrongly denied him a new trial to
present Rangel’s testimony alongside this other evidence. (Docket #20 at
10–15).
Both the Wisconsin trial and appellate courts found that Rangel’s
testimony did not raise a reasonable probability that the outcome of
Little’s trial would have been different had the testimony been introduced.
The Wisconsin Court of Appeals’ decision on the matter reads, in relevant
part:
To prevail on a claim of newly discovered evidence,
the defendant must show, “by clear and convincing evidence
that ‘(1) the evidence was discovered after conviction; (2) the
defendant was not negligent in seeking evidence; (3) the
evidence is material to an issue in the case; and (4) the
evidence is not merely cumulative.’” State v. Love, 2005 WI
116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62 (citation omitted). If
the defendant satisfactorily makes those showings, the
circuit court then “‘must determine whether a reasonable
probability exists that a different result would be reached in
a trial.’” See id., ¶44 (citation omitted).
The circuit court originally determined that Little did
not sufficiently allege a reasonable probability of a different
result; its order denying reconsideration for a second time
effectively affirmed that ruling. We agree with the circuit
court’s conclusions.
“A reasonable probability of a different outcome
exists if ‘there is a reasonable probability that a jury, looking
at both the [old evidence] and the [new evidence], would
have a reasonable doubt as to the defendant’s guilt.’” Id., ¶44
(citation omitted; bracketed sections in Love). H.R.’s affidavit
indicates only that J.B. was an unwilling witness; there is no
suggestion that she was an untruthful one. Absent other
factual allegations, the simple fact that H.R. had to coerce or
persuade J.B. to testify does not in and of itself make her

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testimony any less reliable or credible than if she were a
fully willing witness. Further, Little does not demonstrate
how this new evidence of J.B.’s unwillingness to testify and
her father’s coercion to do so, when added to the old
evidence that was presented to the jury during trial, would
create reasonable doubt as to his guilt.
Nor does H.R.’s persuasion or coercion rise to the
level of a due process violation. Little tries to analogize his
“involuntary testimony” case to cases involving convictions
based on involuntary confessions. See Jackson v. Denno, 378
U.S. 368, 376 (1964) (“[A] defendant in a criminal case is
deprived of due process of law if his conviction is founded,
in whole or in part, upon an involuntary confession[.]”). But
Jackson deals with the conviction of an accused based on the
accused’s own involuntary confession. At issue in such a
case is more than just due process-there is also a concern
about the defendant’s right against self-incrimination. See id.
at 408 (Black, J., dissenting in part and concurring in part).
The concerns about compelled testimony are
necessarily different. In fact, “compulsory process for
securing favorable witnesses” and compelling their
attendance for the defendant’s case is itself a necessary
component of due process. See State v. Schaefer, 2008 WI 25,
¶63, 308 Wis. 2d 279, 746 N.W.2d 457. Thus, in the absence of
other facts, the mere fact that a witness’s testimony has been
coerced, in the sense that the witness ultimately testified
despite her desire not to do so, does not cause us due
process concerns.
(Docket #15-7 at 4–6) (footnotes omitted).
The state court’s conclusions were not unreasonable, and certainly
not contrary to Supreme Court precedent. “As a general rule, newly
discovered evidence that bears only on the question of guilt or innocence
is not reviewable by a federal court on a motion for habeas corpus relief.”
Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992). Nonetheless, “in
some situations newly discovered evidence is so compelling that it would

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be a violation of the fundamental fairness embodied in the Due Process
Clause not to afford a defendant a new trial in which the evidence could
be considered.” Id. (internal quotation marks and citations omitted);
Johnson v. Bett, 349 F.3d 1030, 1038 (7th Cir. 2003). As the Supreme Court
has explained,
[c]laims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal
relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding. . . .
This rule is grounded in the principle that federal habeas
courts sit to ensure that individuals are not imprisoned in
violation of the Constitution—not to correct errors of fact.
Herrera v. Collins, 506 U.S. 390, 400 (1993).
Little argues that the state courts denied him due process because
he was entitled to put on evidence that Rangel pressured J.B. to testify. He
believes that Rangel’s testimony would be especially credible, given that
J.B.’s father would have little incentive to testify on behalf of the man
accused of sexually assaulting her. (Docket #20 at 12). However, as the
Wisconsin Court of Appeals rightly noted, Rangel’s testimony raised no
inference that J.B.’s trial testimony was untruthful. At worst, Rangel
explained that J.B. was not happy about testifying and did not want to do
so.
But an unwilling witness cannot be presumed to be an untruthful
one. J.B. swore to tell the truth at trial, and Rangel does not affirmatively
state that she violated that oath. Thus, Rangel’s affidavit does not move
the evidentiary mark at all, much less in Little’s favor. Due process is not
offended when a witness testifies truthfully despite her inclination not do
so. See Samuel v. Frank, 525 F.3d 566, 569 (7th Cir. 2008) (holding that due

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process is not implicated unless a coerced statement is “completely
unreliable”); State v. Samuel, 643 N.W.2d 423, 431–32 (Wis. 2002) (holding
that a witness’ coerced statement is unreliable if, for instance, it is coached
or induced by threat).4
Little’s challenge goes further, however. He maintains that the state
court failed to appreciate the full body of evidence favorable to him,
including not only Rangel’s coercion but also J.B.’s recantation, her
inconsistent statements about the assaults, and the 2009 photographs. Id.
at 11. According to Little, the 2007 recantation “was the last free and uncoerced statement made by J.B.” Id. at 12. Moreover, the appellate court
did not, in Little’s opinion, properly consider the photographs as evidence
of J.B.’s goodwill toward Little, which was purportedly poisoned a few
weeks later by Rangel’s coercion. Id. Finally, says Little, the state court did
not give due weight to J.B.’s inconsistent statements about the assaults to
law enforcement, which further undermined her credibility. Id.
These considerations, taken together, convince Little that J.B.’s
testimony was not the result of her own free will and was, in fact, false.
See id. at 15. The Court does not agree. The key to the legal standard here
is that the new evidence have some probative value favoring the
defendant such that it, coupled with the existing evidence, raises a
reasonable probability of a different result at trial. See State v. Love, 700
N.W.2d 62, 77 (Wis. 2005). Because Rangel’s affidavit carried de minimis
probative value on the question of J.B.’s truthfulness, there was no cause
to consider whether the “old” evidence was bolstered by the addition of
Little contends that Rangel would have averred that his daughter lied on
the stand but did not do so out of “forgetfulness.” (Docket #39 at 13). Little
cannot unilaterally rewrite the record nor reconfigure Rangel’s sworn statements
years after the fact.
4

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the affidavit. Put differently, a request for a new trial based on newly
discovered evidence cannot involve merely a second look at the old
evidence. See State v. Armstrong, 683 N.W.2d 93, 2004 WL 1171676, at *9
(Wis. Ct. App. 2004), abrogated on other grounds, 700 N.W.2d 98 (Wis. 2005).
Rather, such a request is largely reliant upon the new evidence, since that
new evidence must make some difference to the outcome when
considered alongside the old. Consequently, Little’s motion for new trial
was not wrongly denied.
More importantly, Little has directed this Court to no decision of
the Supreme Court that countermands the state court’s decision. Mere
error in the appellate court’s application of the newly discovered evidence
standard is not actionable on federal habeas review. See Moore v.
Casperson, 345 F.3d 474, 491 (7th Cir. 2003). Under the AEDPA, Little had
to show that the state adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). He has not done so. Thus, no relief
is available to him in this Court.

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4.

CONCLUSION
For the reasons stated above, the Court finds that Little’s asserted

grounds for relief are without merit. The petition must, therefore, be
dismissed.5
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Petitioner must make a
“substantial showing of the denial of a constitutional right” by
establishing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
As noted above and explained at length in an earlier order, Little briefed
a third argument to this Court: that the evidence, considered holistically, was too
unreliable and infected with coercion and inconsistency to support a conviction.
(Docket #20 at 15–17). It was not clear until Little filed his reply, (Docket #39),
that he was proffering an insufficiency-of-the-evidence theory under Jackson v.
Virginia, 443 U.S. 307 (1979). Jackson holds that due process is violated if no
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt on the evidence presented. Id. at 318–19. The reviewing court
may set aside the verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed. Coleman v. Johnson, 566 U.S. 650, 651
(2012).
5

Little asked the Court to dismiss this third ground for relief, and it did so.
(Docket #16, #21). Five months afterward, he asked the Court to walk back its
order, stating that he wanted to pursue a claim that his conviction “rest[ed]
entirely on coerced, false, involuntary, [and] inconsistent testimony[.]” (Docket
#1 at 8); (Docket #33). He did not identify it as a Jackson-style claim in that
motion. See (Docket #33).
The Court did not permit this claim to go forward, as Little himself had
asked the Court to dismiss it. (Docket #34 at 2). Further, the record demonstrates
that no such claim was ever presented to the Wisconsin courts in the first
instance. See id. at 4 n.1. Because the claim remains unexhausted, the Court
cannot consider it, particularly since Little makes no effort whatsoever to explain
why he failed to exhaust the claim. See 28 U.S.C. § 2254(b)(1)(A); Dressler v.
McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001).

Page 18 of 20

manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). As the Court’s discussion above makes
clear, in light of the facts presented and Little’s rehashed arguments from
his state proceedings, no reasonable jurists could debate whether
Petitioner’s petition is without merit. As a consequence, the Court is
compelled to deny him a certificate of appealability.
Finally, the Court closes with some information about the actions
that Little may take if he wishes to challenge the Court’s resolution of this
case. This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty days of the
entry of judgment. Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. Id.
4(a)(5)(A). Moreover, under certain circumstances, a party may ask this
Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure
59(e) must be filed within twenty-eight days of the entry of judgment. The
Court cannot extend this deadline. Fed. R. Civ. P. 6(b)(2). Any motion
under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. Id. A party is expected to
closely review all applicable rules and determine what, if any, further
action is appropriate in a case.

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Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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