Pacheco, Elixavier v. State of Wisconsin

Filing 45

ORDER that the petition for writ of habeas corpus filed by Elixavier Pacheco, Dkt. 1 , is DENIED. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek a certificate from the court of appeals under Fed. R. App. P. 22. Signed by District Judge James D. Peterson on 3/14/2022. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ELIXAVIER PACHECO,
Petitioner,
v.

OPINION and ORDER
15-cv-178-jdp

JASON WELLS,1
Respondent.

Petitioner Elixavier Pacheco, an inmate confined at Racine Correctional Institution, has
filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pacheco
challenges his state-court conviction for second-degree sexual assault of a child in Milwaukee
County Circuit Court Case No. 09CF5344. He challenges his conviction on the following
grounds: (1) the circuit court erred in allowing the state to introduce at trial evidence that
Pacheco had previously assaulted the victim, his 14-year-old half-sister, M.H.; (2) his trial
lawyer was ineffective for failing to call an alibi witness who would have testified that Pacheco
was not with M.H. at the time she said he assaulted her; and (3) his trial counsel was ineffective
for failing to introduce evidence that Pacheco believes showed that M.H. had previously falsely
accused others of assaulting her.
I previously concluded that Pacheco exhausted only one of his claims: that the circuit
court erred in allowing the state to introduce at trial evidence that he had previously assaulted
M.H. He failed to exhaust his ineffective assistance of counsel claims about trial counsel’s
failure to call an alibi witness or present M.H.’s previous false accusations of assault. See Dkt. 8.

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I have updated the caption to provide the identity of the warden at Pacheco’s current prison.

Pacheco stated that his appellate lawyer raised his alibi-witness and false-accusation claims in
a postconviction motion but then abandoned the issues on appeal. Pacheco asked this court to
stay his federal habeas petition so that he could pursue claims of ineffective assistance of trial
and appellate counsel in state court. In my order directing the state to respond to the petition,
I told the parties to address the merits of Pacheco’s claims, whether Pacheco could still exhaust
his claims, whether he procedurally defaulted his claims, and whether he should be granted an
exception to procedural default. See Dkt. 11.
Pacheco has not addressed these questions. The court gave Pacheco a series of
extensions to file his brief in chief because he and his jailhouse lawyer contended that prison
staff blocked their ability to work together and confiscated legal materials that the jailhouse
lawyer needed to complete the brief. I twice ordered the clerk of court and respondent to
provide Pacheco with the documents that he said he didn’t have, but I declined to hold a
hearing about the alleged problems, stating that that it was unnecessary for this case to devolve
into a mini-trial over Pacheco’s legal documents. Dkt. 24 and Dkt. 34, at 2 (“[T]he relevant
issue in this case is Pacheco’s access to the state courts, not [his jailhouse lawyer’s] complaints
about being harassed by prison officials. It’s time for this case to move on.” (citations omitted)).
Even after multiple extensions and the provision of documents by the state and this court,
Pacheco did not file a brief in support of his petition. I denied Pacheco’s request for a fourth
extension of the briefing schedule, concluding that he had forfeited the opportunity to file a
brief in support. Dkt. 37. After respondent filed a brief in opposition, Pacheco did not file a
brief in reply. As a result, Pacheco has not filed a substantive brief in this case. He has arguably
abandoned his petition. Nonetheless, I will address his claims in this opinion.

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I conclude that Pacheco fails to show that the Wisconsin Court of Appeals unreasonably
applied clearly established federal law when it rejected his other-acts-evidence claim, and that
his ineffective assistance of counsel claims do not meet the demanding actual-innocence
standard necessary for this court to consider those procedurally defaulted claims. Accordingly,
I will deny his petition.

BACKGROUND
The following facts are taken from the petition and the state court records provided by
Pacheco and the state.
A. Pretrial events
In November 2009, Pacheco was charged with second-degree sexual assault of a child
under 16. The criminal complaint stated that on October 7, 2009, Pacheco sexually assaulted
M.H., his half-sister who was then 14 years old. The assault occurred a home shared by M.H.
and Pacheco’s mother; Pacheco was not living there at the time.
The state filed a pretrial motion to introduce “other acts” evidence under Wis. Stat.
§ 904.04(2), seeking to allow M.H. to testify about Pacheco having sexually assaulted her in
the past. Admission of this evidence forms the basis for one of Pacheco’s habeas claims.
The state sought to use the other acts evidence to provide context for online chat
messages between M.H. and her friend Jenna sent immediately before and after the assault at
issue, to explain M.H.’s lack of resistance to Pacheco’s assault, and to bolster M.H.’s credibility.
Pacheco’s trial counsel, Eugene Bykhovsky, objected, arguing that the evidence was unfairly
prejudicial and would be used to convict Pacheco “by virtue of his offenses from the last time.”
Dkt. 15-9, at 6. The trial court allowed the state to introduce evidence that Pacheco had

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previously sexually assaulted M.H., concluding that the evidence would be used to provide
context for the events of that night and to bolster M.H.’s credibility.
Also before trial, Bykhovsky learned that in 2007 and 2009 M.H. had accused others
(her stepfather, William Ramos, and a family friend, Hector Claudio) of sexually assaulting
her. Police reports and records from that investigation form the basis for Pacheco’s second
habeas claim.
Both men denied the allegations to police at the time of M.H.’s accusations. Neither of
those reports resulted in prosecution. Bykhovsky sought those records from the state, which
initially declined to turn them over. By this time, Claudio wasn’t interested in participating in
the case, but Ramos was.
At a pretrial hearing, assistant district attorney Paul Tiffin stated that those reports
were not exculpatory because they were not evidence of untruthful accusations by M.H., and
so he did not need to provide them to Pacheco. Tiffin stated that his decision not to issue
charges after the 2009 incident wasn’t because of a recantation but rather because the state
couldn’t prove the case beyond a reasonable doubt. Tiffin said that notes from another assistant
attorney general’s investigation of the 2007 incident showed that M.H. and her mother failed
to appear for meetings twice and that the case couldn’t be proven beyond a reasonable doubt,
but that there was no recantation—M.H. continued to insist that she was telling the truth
about those incidents. After further discussion at the hearing, Tiffin agreed to turn over the
records. But Bykhovsky did not use them at trial.
Pacheco’s third habeas claim concerns other evidence that Bykhovsky considered using
at trial but did not. Pacheco told Bykhovsky that he spent part of the day of the assault at the
home of his friend, Alex Santiago, before going to M.H.’s house that night. Bykhovsky served

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the state with a notice of alibi and interviewed Santiago, but ultimately did not call Santiago
as a witness at trial.
B. Trial
At trial, M.H. testified about the events on the night of the assault. She stated that
Pacheco arrived at her home and stated that he was just there to eat. M.H. then went to the
living room and began chatting with her friend Jenna over the internet.
The state introduced a transcript of the online chat between M.H. and Jenna. The chat,
which was shown to the jury, was time-stamped with messages from 6:50 to 7:29 p.m., with a
gap from 6:56 to 7:13 p.m. M.H. and Jenna talked about the distress that M.H. felt because
Pacheco was at the house. Then the state asked M.H. about chat comments alluding to her
having previously been assaulted by Pacheco, with M.H. then directly stating that she had been
assaulted by Pacheco before:
Q. After “IDK” [I don’t know] though, you then type a single
word, “scared.”
A. Yes.
Q. Is that the word you were searching for?
A. Yes.
Q. Why were you scared? Your brother is just there eating?
A. I was scared because he’s done that before.
Q. Done what before, eating?
A. He’s sexually assaulted me before.
Q. Prior to October 7th?
A. Yes.
Dkt. 15-12, at 19.

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M.H. testified that the sexual assault occurred during a break in the online chat.
Pacheco rubbed and put his mouth on her breasts, touched her vagina, made her perform oral
sex on him, and forced sexual intercourse with her. M.H. said that she “didn’t do anything” to
resist the assault besides saying no to performing oral sex. Dkt. 15-12, at 22, 25. When asked
why she didn’t do anything to resist, M.H. said, “Because I’ve never done anything,” and she
answered yes to the state’s question whether she was referring to previous assaults by Pacheco.
Id. In discussing her saying no to oral sex, M.H. again referred to the history of assaults by
Pacheco:
Q. Did you say anything to him?
A. I said, “No.”
Q. You said, “No”?
A. Yeah.
Q. To the best you remember, is the first time you had said no?
A. Once when I was little I said, No. But that moment, that day,
that’s the first time, yeah.
Id. at 25.
M.H. testified that after the assault she took a shower and she then resumed chatting
with Jenna. M.H. told Jenna about the assault, typing “I had to”; “I don’t know how to say no
to him”; “he did it”; “he, umm”; and “touched me?,” all referring to the sexual assault that had
taken place. Id. at 31–34. M.H. also referred to Pacheco’s history of assaulting her:
Q. Your friend sent you a message asking the question, “What are
you scared of?” And you responded, “Jenna, he did it.” I read
correctly what’s the chat message, right?
A. Yes.
Q. [Jenna] asks the question, “Did what?” You responded with
three periods. You then sent another message, “You can’t tell

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anyone.” You sent a message, “Please,” question mark. What did
all that mean?
A. [Jenna] knows that he sexually assaulted me before.
Id. at 33.
Q. Then you responded, “Jenna, I’ve been doing this since I was
like six.” I read that correctly?
A. Yes.
Q. What is the “this” that you’re referring to?
A. Putting up with him sexually assaulting me.
Id. at 36.
M.H. also testified that she typed “I thought he changed”; “You don’t get it. I don’t
have a choice”; “I don’t know how to stop him”; and “he knows that.” Id. at 34–37. M.H. typed
“I’m still scared,” and explained that she meant, “All those years and I can’t do anything.” Id.
at 37.
M.H. also told Jenna that M.H. promised Pacheco that she wouldn’t tell anyone about
the assault. Ten days later, M.H. referred to the assault while arguing with another of her
brothers. M.H.’s mother then called the police.
On cross-examination, Bykhovsky impeached M.H. with her statement to police that
Pacheco came to her house at 8:00, which was inconsistent wither her trial testimony that he
arrived before 7:00 p.m.
Pacheco testified in his own defense that he went to M.H.’s home to get food that night.
He did not explain what time he got to the house. He admitted that he had sexually assaulted
M.H. in the past, but he stated that he did not sexually assault her that night, as she claimed.

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The court instructed the jury that it heard evidence that Pacheco had previously had
sexual contact with M.H., and that the evidence was offered “because it explains or offers
context to statements contained in the Internet chat between [M.H. and Jenna].” Dkt. 15-13,
at 66. The court instructed that the jury could not consider that evidence to conclude that
Pacheco “has a certain character or certain character trait and that [Pacheco] acted in
conformity with the trait or character with respect to the offense charged in this case” or to
conclude that Pacheco “is a bad person and for that reason is guilty of the offense charged.”
Id. at 66–67. The jury returned a guilty verdict.
C. Postconviction proceedings
Pacheco’s appointed postconviction counsel, Dustin Haskell, filed a postconviction
motion seeking a new trial based on two claims of ineffective assistance of trial counsel—that
Attorney Bykhovsky was ineffective for (1) failing to introduce evidence of M.H.’s prior false
allegations of sexual assault; and (2) choosing not to call Santiago as an alibi witness. The court
summarily denied Pacheco’s postconviction motion on the ground regarding M.H.’s prior false
allegations of sexual assault and set a Machner2 hearing on the ground regarding alibi witness
Santiago.
At the hearing, Bykhovsky testified that Pacheco told him that he was with Santiago
before he went to M.H.’s house. Bykhovsky hired a private investigator who met with Santiago
twice before trial at the House of Correction where Santiago was being held on a potential

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The term “Machner hearing” comes from a Wisconsin Court of Appeals decision, State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), which allows an evidentiary
hearing when a criminal defendant’s trial counsel is challenged for ineffective assistance. At the
hearing, the trial counsel testifies to their reasoning on the challenged action or inaction. Id. at
908–09.

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parole revocation hold. Bykhovsky also met with Santiago and he issued a subpoena for
Santiago’s possible testimony at trial.
But Bykhovsky explained that he chose not to call Santiago because Santiago “wasn’t
very clear on his recollection” about what happened the day of the assault. Dkt. 15-15, at 10.
Santiago told Bykhovsky that he and Pacheco had been hanging out all day, smoking marijuana
at someone named “Taboo’s” house before Pacheco left to go to his mother’s house at about
8:00 p.m. But Bykhovsky testified that Santiago “wasn’t able to precisely state any times”
about that night. Id. at 11.
Bykhovsky testified that in discussing trial strategy with Pacheco, Bykhovsky did not
think that calling Santiago was necessary because he could already impeach M.H. about her
inconsistent statements about the specific time that Pacheco came to her house. He also
thought that Santiago had “questionable credibility” because of Santiago’s demeanor during
interviews, and because Santiago’s recollection of what time Pacheco left his house varied
during interviews. Id. at 13. He also thought that Santiago’s admission that he and Pacheco
“were pretty much smoking weed the whole day” would undermine Pacheco’s own credibility.
Id. at 14.
Santiago then testified, stating that he and Pacheco were longtime friends. Santiago
stated that Pacheco came to his house at around 10:00 or 10:30 a.m. and they spent time at
Santiago’s home before going to Taboo’s house where they “smoked marijuana and [] chilled”
for “around two hours, two and half hours.” Id. at 22. He said that they left Taboo’s house at
about 8:30 or 8:45 p.m. and that Pacheco came back to Santiago’s house until around 9:00 or
9:30, when Pacheco left.

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On cross-examination, the state impeached Santiago with statements from his police
interview in which his timeline for the events differed from his testimony at the postconviction
hearing. In particular, Santiago told the officer that he and Pacheco left Taboo’s house at 8:00
p.m., 45 minutes earlier than he stated at the hearing. On cross-examination, Santiago stated
that he knew that Pacheco left his house between 9:00 and 9:30 p.m. because he looked at a
clock. When asked what the clock said, Santiago responded “It said at 9, 9:30, 9:10–9:10,
around there.” Id. at 32. After being pressed by the state, Pacheco said the clock said 9:00.
The circuit court ruled that Attorney Bykhovsky did not perform deficiently, and, even
if he had, Pacheco’s defense at trial was not prejudiced. The court described Santiago as “an
incredibly poor witness” for the defense because of his inconsistent hearing testimony and five
prior convictions, and because Santiago “would have admitted that he’s buddies with the
defendant” and “would have admitted that he spent all or most of the day smoking weed.”
Id. at 47–48. The court stated that Santiago’s proffered testimony that he remembered
“exactly” that Pacheco left his house at 9:00 would “strike[] a jury as completely incredible
because juries know that no one remembers what they were doing a year earlier or six months
earlier to the minute.” Id. at 48. The court stated that Santiago was “lying through his teeth.”
Id.
D. Appeal
Still represented by Haskell, Pacheco raised only one ground on appeal: that the trial
court erred in admitting evidence that Pacheco had previously assaulted M.H. The court of
appeals affirmed the conviction. State v. Pacheco, 2013 WI App 105, 349 Wis. 2d 788, 837
N.W.2d 178. The court compared this case favorably to the Wisconsin Supreme Court’s
decision in State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399, a child-sexual-

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assault prosecution in which the court allowed other acts evidence in the form of the child
victim’s complete videotaped forensic interview, which included statements that the defendant
had previously burned the victim’s hands with hot water.
The court of appeals concluded that the other acts evidence was admissible here “for
the proper purpose of providing context, including providing a more complete background of
the case and establishing M.H.’s credibility,” and that M.H.’s credibility was “central to this
case.” Pacheco, 2013 WI App 105, ¶¶ 19–20. The court concluded that the probative value of
the evidence outweighed the danger of unfair prejudice because the probative value was
“extremely high, in that it explained M.H.’s otherwise inexplicable passive submission to
Pacheco’s demands for sexual contact with her, and provided a full context for the online chat
M.H. had with her friend immediately before and after the sexual assault,” and because the
jury was given a limiting instruction on the proper use of the evidence. Id., ¶ 24.
Pacheco filed a petition for review in the Wisconsin Supreme Court, which was denied.

ANALYSIS
A. Unexhausted ineffective assistance of counsel claims
1. Pacheco’s request for stay and abeyance
An initial question is whether the court should grant Pacheco’s request to stay the
petition and hold it in abeyance while Pacheco exhausts his ineffective assistance of counsel
claims about an alibi witness and M.H.’s previous false accusations. As I have previously
explained to Pacheco, such a stay is warranted only where the petitioner can demonstrate
(1) that he had good cause for his failure to exhaust; (2) his unexhausted claims are potentially

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meritorious; and (3) he has not engaged in abusive litigation tactics or intentional delay. Rhines
v. Weber, 544 U.S. 269, 278 (2005).
A stay is not warranted in this case because Pacheco has shown a complete lack of
diligence in pursuing a state-court remedy for his unexhausted ineffective assistance of counsel
claims. Pacheco could have pursued his claims about the failure of his counsel to fully litigate
his claims about ineffectiveness of trial counsel at both the postconviction and appellate stages
by filing petitions in the circuit court and the court of appeals. See State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 677–82; 556 N.W. 2d 136, 137–39 (Ct. App. 1996) (describing
procedure for challenging effectiveness of postconviction counsel in circuit court); State v.
Knight, 168 Wis. 2d 509, 520–21, 484 N.W. 2d 540, 544–45 (1992) (describing procedure for
challenging effectiveness of appellate counsel in the court of appeals). But my own review of
online Wisconsin court system records shows that Pacheco has not filed a petition in either
state court during the long pendency of this federal habeas case despite me previously telling
Pacheco that such a petition would be necessary to exhaust his claims. See Dkt. 11, at 2. And
it’s virtually certain that the state courts would not allow Pacheco to file a state-court petition
now, so long after the 2013 rulings denying his appeal. State ex rel. Wren v. Richardson, 2019
WI 110, ¶ 42, 389 Wis. 2d 516, 936 N.W.2d 587 (applying laches to Knight petition filed
about ten years after petitioner’s conviction); State ex rel. Washington v. State, 2012 WI App 74,
¶ 22, 343 Wis. 2d 434, 819 N.W.2d 305 (applying laches to Knight petition filed five and a
half years after petitioner because aware of appellate counsel’s failure to file an appeal). So
there is no reason to stay this case for further state-court proceedings.

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2. Procedural default
Pacheco’s failure to exhaust his ineffective assistance of counsel claims means that he
has procedurally defaulted those claims. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir.
2001). In very rare circumstances, a federal court may excuse a petitioner’s procedural default
and consider the claims anyway. One such circumstance would be for Pacheco to show cause
and prejudice for his failure to exhaust his claims, Edwards v. Carpenter, 529 U.S. 446, 451
(2000). That requires showing that there was “some objective factor external to the defense”
that prevented him from pursuing his claim in state court. Harris v. McAdory, 334 F.3d 665,
668 (7th Cir. 2003). Other than stating earlier in the case that he had not received material
from his appellate counsel and that prison staff were hampering his efforts to work with his
jailhouse lawyer, Pacheco does not attempt to make this showing, and I conclude that he fails
to present a persuasive reason for his failure to file a petition in the state courts similar to his
petition in this court.
Courts can also excuse a petitioner’s procedural default if the petitioner can show that
dismissal would result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298,
315 (1995). Pacheco says that he is actually innocent of the sexual assault charge.3 The actualinnocence gateway to excusing procedural default “is demanding and permits review only in
the ‘extraordinary’ case.” Blackmon v. Williams, 823 F.3d 1088, 1100–01 (7th Cir. 2016). To
qualify for this narrow exception, Pacheco “must have ‘new reliable evidence—whether it be

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In his petition, Pacheco raised a fourth claim that he was actually innocent of the sexual
assault. But the United States Supreme Court has not yet recognized a prisoner’s right to bring
a standalone claim of actual innocence. Gladney v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015)
(citing Herrera v. Collins, 506 U.S. 390, 404–05 (1993)). As I stated in screening Pacheco’s
petition, his actual-innocence claim is essentially a restatement of his ineffective assistance of
counsel claims. Dkt. 8, at 1.

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exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.’” Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016) (quoting
Schlup, 513 U.S. at 324)); see also Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (“a
prisoner must have documentary, biological (DNA), or other powerful evidence: perhaps some
non-relative who placed him out of the city, with credit card slips, photographs, and phone logs
to back up the claim.”). The evidence of innocence must be so strong that “in light of the new
evidence . . . more likely than not any reasonable juror would have reasonable doubt.” House v.
Bell, 547 U.S. 518, 538 (2006). To be “new,” the evidence does not need to be “newly
discovered,” but it must not have been presented at trial. Gladney v. Pollard, 799 F.3d 889, 898
(7th Cir. 2015).
Pacheco’s proposed new evidence is not strong enough to meet this exacting standard
so his claims based on new evidence are doomed by procedural default. His ineffective
assistance of counsel claims regarding all stages of his case—trial, postconviction, and appeal—
boil down to his contentions that trial counsel should have (1) called Alex Santiago as an alibi
witness; and (2) introduced evidence regarding M.H.’s previous false accusations of sexual
assault.
At Pacheco’s Machner hearing, both Pacheco’s trial counsel and the circuit court judge
persuasively explained why Santiago’s testimony wouldn’t have been particularly helpful to
Pacheco. Pacheco’s alibi defense wasn’t that strong to begin with. He admitted that he was
indeed at M.H.’s house that night, but he didn’t actually testify about the time he arrived at
M.H.’s house. On cross-examination, defense counsel had already gotten M.H. to admit that
she told an investigating officer that Pacheco arrived at her house at 8:00 p.m., a time
inconsistent with her direct testimony that the assault occurred at around 7:00 p.m. and the

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chat records supporting that timeframe. Counsel could have elicited Santiago’s testimony to
bolster the defense theory that Pacheco arrived at M.H.’s house later, but that wouldn’t rule
out that the assault occurred later, when Pacheco admitted that he was there.
New testimony from an eyewitness that simply contradicts another eyewitness is
generally not the type of evidence that can establish actual innocence. See Smith v. McKee, 598
F.3d 374, 388 (7th Cir. 2010); see also Hayes, 403 F.3d at 937 (affidavits of six alibi witnesses
not called at trial insufficient to show actual innocence because government had presented six
witnesses stating petitioner committed the crime). Testimony from friends and family of the
accused is significantly less probative than testimony from witnesses with no motive to lie.
House, 547 U.S. at 552. And Santiago had substantial credibility problems. Santiago gave
inconsistent accounts regarding the timing of the day’s events to Pacheco’s counsel, an
investigating police officer, and to the court in his postconviction-motion hearing testimony.
Santiago has multiple convictions or juvenile adjudications, which would generally undermine
his credibility. His statements that he and Pacheco smoked marijuana throughout the day likely
would undermine his credibility concerning his ability to recount the exact timing of events
more than a year after the fact. And Santiago’s hearing testimony that he knew that Pacheco
was at his house until 9:00 p.m. because he remembered seeing a clock stating 9:00 is
implausible, particularly given the shakiness of his recollection when previously recounting the
events to counsel and to an officer. This partial alibi testimony of questionable credibility is
not of the character necessary to support a defendant’s actual-innocence argument.
What Pacheco calls evidence of M.H.’s prior false accusations of sexual assault also fails
to meet this standard. Although I must conduct the actual-innocence analysis of M.H.’s prior
accusations “without regard to whether it would necessarily be admitted under ‘rules of

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admissibility that would govern at trial.’” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at
327–28), application of the Wisconsin admissibility rules for such evidence shows why that
testimony would have only limited usefulness to Pacheco.
The circuit court denied Pacheco’s postconviction motion on this issue, stating that
M.H.’s prior accusation wouldn’t have been admitted under Wisconsin’s rape shield law,
Wis. Stat. § 972.11(2)(b). One exception to that law’s general prohibition on evidence about
a complaining witness’s prior sexual conduct is “[e]vidence of prior untruthful allegations of
sexual assault made by the complaining witness.” § 972.11(2)(b)3. But to allow such evidence
to be presented, “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. A court should not
admit prior accusations if a jury “would have to speculate . . . to determine that [the
complaining witness] was untruthful.” Id., ¶ 41.
The court denied Pacheco’s postconviction motion on this issue in part because there
wasn’t much support for M.H.’s accusations actually being false. Postconviction counsel noted
that the alleged perpetrators of the previous assaults denied the accusations and that neither
man was charged. But under Ringer, those factors are not enough to elevate an assertion of
untruthfulness above that of mere speculation. Id., ¶¶ 39–40. The rationale underlying these
standards is sensible: many accused perpetrators deny the crimes of which they are accused,
and many considerations beyond the truthfulness of the allegations go into a district attorney’s
decision whether to prosecute. Additionally, in the present case, M.H. did not recant her prior
accusations; she continued to insist that they were true. And Pacheco admitted that he had
assaulted M.H. in the past, which cuts against the conclusion that M.H. fabricated every

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accusation she made. Even now, Pacheco has not provided other evidence to support an
inference that the accusations were indeed false.
In summary, Pacheco wants this court to consider M.H.’s prior accusations when a jury
could only speculate whether they were actually untrue. That exceedingly thin evidence, even
when taken in conjunction with Santiago’s testimony, simply is not the kind of striking new
evidence contemplated in Schlup that would be necessary to show that Pacheco was actually
innocent of the offense. So I cannot excuse Pacheco’s procedural default and go on to consider
the merits of his ineffective assistance of counsel claims.
B. Exhausted other-acts-evidence claim
I turn to the merits of the claim that Pacheco exhausted in the state courts: that the
trial court erred in admitting other acts evidence showing that Pacheco had previously sexually
assaulted M.H. This is a challenge to the state court system’s rulings on an issue of law. Under
28 U.S.C. § 2254(d)(1), this court may grant a state prisoner’s petition for habeas corpus when
the state court’s adjudication of the merits of a claim for relief “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.”
This standard places a high burden on the petitioner. Metrish v. Lancaster, 569 U.S. 351,
357–58 (2013) (“This standard . . . is ‘difficult to meet.’” (quoting Harrington v. Richter, 562
U.S. 86, 102 (2011))). “Clearly established law” must be set out in the holdings of Supreme
Court decisions. White v. Woodall, 572 U.S. 415, 419 (2014). “[A]n ‘unreasonable application
of’ those holdings must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will
not suffice.” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). Rather, “[a] state
court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Richter, 562
U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The relevant statecourt decision for this court’s review is the opinion issued by the Wisconsin Court of Appeals,
because it was the last state court to review the merits of Pacheco’s claim. Stevens v. McBride,
489 F.3d 883, 902 n.2 (7th Cir. 2007).
As respondent points out, Pacheco perhaps procedurally defaulted this claim despite
exhausting his remedies in state court because he did not present a federal-law theory in his
direct appeal. Instead, Pacheco focused his argument on the theory that admission of this
evidence violated Wisconsin’s other acts evidentiary rule, Wis. Stat. § 904.04(2). The
interpretation of state evidentiary law is generally beyond the scope of federal habeas review.
See Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004). Pacheco’s state-court briefing and
the court of appeals’ decision explicitly addressed the Wisconsin evidentiary issue, not the
constitutional due process theory associated with this type of claim. See Perry v. New Hampshire,
565 U.S. 228, 237 (2012) (State court evidentiary rulings implicate the Due Process Clause
only when “evidence ‘is so extremely unfair that its admission violates fundamental
conceptions of justice[.]’” (quoting Dowling v. United States, 493 U.S. 342, 352 (1990))).
But the rule that a petitioner must present a federal claim to the state courts “does not
require hypertechnical congruence between the claims made in the federal and state courts; it
merely requires that the factual and legal substance remain the same.” Anderson v. Benik, 471
F.3d 811, 815 (7th Cir. 2006). In determining whether a habeas petitioner has fairly presented
a constitutional issue in state court, I may consider among other factors “whether the petitioner
framed the claim in terms so particular as to call to mind a specific constitutional right.”
Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). On at least one occasion in similar

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circumstances, the United States District Court for the Eastern District of Wisconsin has
concluded that a habeas petitioner fairly presented a due process claim regarding the admission
of other acts evidence of a petitioner’s prior sexual misconduct because the petitioner had relied
on Wisconsin cases articulating due process principles. Sauve v. Hepp, No. 18-CV-932-JPS,
2019 WL 6327199, at *4–5 (E.D. Wis. Nov. 26, 2019) (noting that petitioner had discussed
Marinez, 2011 WI 12, ¶ 51 (evaluating whether inclusion of other acts evidence “so infect[ed]
the trial with unfairness as to deny Marinez due process” (internal quotations omitted)); State
v. Hunt, 2003 WI 81, ¶ 34, 263 Wis. 2d 1, 666 N.W.2d 771 (considering whether trial court
“used a demonstrated rational process”); State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d
30, 36 (1998) (same). Pacheco and the court of appeals discussed the same underlying cases
in considering his other-acts-evidence claim.
Nonetheless, even if I follow the approach in Sauve and conclude that Pacheco fairly
presented a federal due process claim to the state courts, that claim fails on the merits.
Petitioners raising this type of claim have a very high standard to meet. See, e.g., Watkins v.
Meloy, 95 F.3d 4, 6–7 (7th Cir. 1996) (“[W]hen the state merely fails to limit the prosecution’s
evidence, the only constitutional principle to which the defendant can appeal is a catch-all
sense of due process, and the appeal almost always fails.”). The Court of Appeals for the
Seventh Circuit has framed the due process standard in the context of evidentiary questions
by asking whether “the incorrect evidentiary ruling was so prejudicial that it violated [the
petitioner’s] due process right to a fundamentally fair trial, creating the likelihood that an
innocent person was convicted.” Dressler v. McCaughtry, 238 F.3d 908, 914 (7th Cir. 2001).
No United States Supreme Court case has yet held that the admission of evidence of
other crimes violates a defendant’s due process rights even if, unlike here, it is admitted

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specifically to show the propensity of the defendant to commit crimes. See Estelle v. McGuire,
502 U.S. 62, 75 n.5 (1991) (“Because we need not reach the issue, we express no opinion on
whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’
evidence to show propensity to commit a charged crime.”). Moreover, federal practice shows
that in sexual-assault cases, the use of similar other acts evidence does not violate the Due
Process Clause. Although propensity evidence is ordinarily excluded under the rules of
evidence, in federal law there is an explicit exception to that principle: Federal Rule of Evidence
413 (“Similar Crimes in Sexual-Assault Cases”) allows the use of “evidence that the defendant
committed any other sexual assault. . . . [and such] evidence may be considered on any matter
to which it is relevant.”4 Such evidence is still subject to other evidentiary rules; for instance,
it could still be excluded under Rule 403 if its probative value is substantially outweighed by
the danger of unfair prejudice.
Accordingly, courts considering similar circumstances in habeas cases and federal
criminal prosecutions have concluded that the admission of prior sexual misconduct does not
violate the Due Process Clause. See United States v. Julian, 427 F.3d 471, 486–87 (7th Cir.
2005) (rejecting due process argument regarding admission of previous sexual assault by
defendant, stating, “Congress enacted Rule 413 because sexual assault cases, especially cases
involving victims who are juveniles, often raise unique questions regarding the credibility of
the victims which render a defendant’s prior conduct especially probative.”); Sauve, 2019 WL

4

Years after Pacheco’s conviction, Wisconsin’s character-evidence rule was similarly amended.
See 2013 Wis. Act 362, § 38. The current version states in relevant part that “[in a prosecution
for a serious sex offense against a child], evidence of any similar acts by the accused is
admissible, and is admissible without regard to whether the victim of the crime that is the
subject of the proceeding is the same as the victim of the similar act.” Wis. Stat.
§ 904.04(2)(b)1.

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6327199, at *6 (denying habeas due process claim concerning introduction of evidence of
defendant’s prior similar acts of sexually explicit text messages); Wheeler v. Pollard, No. 13-CV1163, 2020 WL 2748130, at *6 (E.D. Wis. May 27, 2020) (denying habeas claim concerning
admission of defendant’s previous sexual abuse of victim).
Here, the court of appeals concluded that the admission of Pacheco’s prior assaults of
M.H. were probative to provide context for the online chat, establish M.H.’s credibility, and
explain M.H.’s passivity to Pacheco’s assault. And it noted that unfair prejudice from the other
acts evidence was mitigated by the court’s limiting instruction to the jury. Because of the wide
latitude that courts have to allow other acts evidence in sexual assault cases like Pacheco’s, I
cannot conclude that the court of appeals’ decision unreasonably applied federal law
concerning Pacheco’s due process rights. I will deny Pacheco’s habeas petition on this ground
and I will dismiss the case.
C. Certificate of appealability
Under Rule 11 of the Rules Governing Section 2254 Cases, the court must issue or
deny a certificate of appealability when entering a final order adverse to a petitioner. To obtain
a certificate of appealability, the applicant must make a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004).
This means that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different 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 quotations and citations omitted). Although the rule allows a court to ask the
parties to submit arguments on whether a certificate should issue, it is not necessary to do so
in this case. Because reasonable jurists would not debate whether Pacheco should be granted a

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habeas petition, I will not issue him a certificate of appealability. He may seek a certificate
from the court of appeals under Fed. R. App. P. 22.

ORDER
IT IS ORDERED that:
1. The petition for writ of habeas corpus filed by Elixavier Pacheco, Dkt. 1, is DENIED.
2. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek
a certificate from the court of appeals under Fed. R. App. P. 22.
Entered March 14, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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