United States District Court, W.D. Wisconsin
OPINION & ORDER
JAMES D. PETERSON District Judge
Pro se petitioner Adrian Alexander Starks is currently incarcerated at the Redgranite Correctional Institution. He is challenging his confinement under 28 U.S.C. § 2254 and I have screened his habeas corpus petition. Dkt. 13. The petition alleges ineffective assistance of counsel and Brady violations, among other theories of relief. I have reviewed petitioner’s claims under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court, and ordered that the petition be served. Dkt. 13. Defendant has responded, and petitioner’s brief was due December 23, 2015.
Petitioner has not filed his brief, but he has moved for appointment of a medical expert to help demonstrate the ineffectiveness of his trial counsel for stipulating that heroin caused the death of one of the victims. Dkt. 19. Alternatively, he asks the court to order the state to release funds from his prisoner release account so that he may pay for the expert himself. Petitioner’s motion asks the court to stay his briefing deadline pending the resolution of his motion.
Petitioner also has a motion pending in which he seeks to unseal documents relating to his co-defendant’s testimony against him at trial. Dkt. 10. In the alternative, petitioner requests that I conduct an in camera review of these documents and determine whether they should have been disclosed to petitioner before trial.
For the reasons explained below, I will deny the motion to unseal the records and the motion for appointment of an expert. I will allow petitioner to use his release account funds to pay for an expert, if that is an expense he chooses to bear. I will also grant petitioner’s request concerning the timing of his brief and set a new briefing schedule.
I draw the following facts from petitioner’s filings.
Petitioner was convicted in 2008 of one count of conspiracy to manufacture and distribute more than 50 grams of heroin and two counts of first-degree reckless homicide under Wis.Stat. §§ 940.02(2)(a) and 961.41(1)(d). Before petitioner’s trial, his co-defendant, Dennis Dickinson, was convicted and sentenced to 16 years in prison. At petitioner’s trial, Dickinson testified against petitioner. He exchanged his testimony for the assistant district attorney’s agreement to work with the U.S. Attorney’s Office to request a reduction to Dickinson’s federal sentence and to ask the state court to count his sentences concurrently. 18 U.S.C. § 3553(e); Fed. R. Crim. P. 35. Based on his assistance at petitioner’s trial and based on changes to the Federal Sentencing Guidelines, this court reduced Dickinson’s 200-month federal sentence to 115 months. Minute Entry for Proceedings, United States v. Dickinson, No. 06-cr-59 (W.D. Wis. Mar. 25, 2008), ECF No. 37. And Dickinson’s state-court sentence was imposed concurrently to his federal sentence. Petitioner did not have access to the information about Dickinson’s plea agreement to use at his trial to impeach Dickinson’s credibility.
Before trial, on the advice of counsel, petitioner stipulated that heroin caused the death of both victims, an element of both first-degree reckless homicide counts. But at the time, he had not actually seen the autopsy report for one of the victims, Michael Ace, which indicated that Ace’s death was “accidental, ” and that it was caused by the combined effects of prescription and illicit drugs. Because of petitioner’s stipulation, the government did not have to put on evidence that the heroin that petitioner supplied actually caused the victims’ deaths. At a postconviction hearing, petitioner’s trial counsel testified that the stipulation was a strategic choice, designed to prevent the state’s medical witness from offering compelling testimony about how the victims died.
Dickinson’s resentencing documents
Petitioner asks me to unseal the records from Dickinson’s resentencing-or to review them in camera-to determine whether the government should have disclosed them to petitioner before his trial. Court documents are presumptively unsealed. Bond v. Utreras, 585 F.3d 1061, 1073 (7th Cir. 2009) (“It is beyond dispute that most documents filed in court are presumptively open to the public.”). But many sentencing documents are sealed, however, because they include intimate information about victims and other non-parties, and sometimes they include sensitive information that, if disclosed publicly, might prejudice or endanger the defendant. I am not the proper authority to unseal the Dickinson documents because I did not conduct the resentencing and seal those records. Petitioner should direct his motion to unseal the Dickinson documents to Judge Crabb, who resentenced Dickinson and sealed the records.
But regardless of which judge he asks, petitioner has failed to show how these records could have helped his case. He has not articulated what he thinks the records could contain that might have helped his counsel enough to change the outcome of his trial. Petitioner could impeach Dickinson with the facts he already knows: that Dickinson got a sentence reduction in exchange for his testimony. And a marginal improvement in the effectiveness of that impeachment would not be enough to show that his trial counsel was ineffective. Strickland v. Washington, 466 U.S. 668, 689 (1984) (“[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation.”). Therefore, I will dismiss petitioner’s motion. If the ...