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Darden v. Douma

United States District Court, W.D. Wisconsin

July 15, 2016

HERBERT AMBROSE DARDEN, Petitioner,
v.
TIMOTHY DOUMA, Respondent.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Petitioner Herbert Darden is currently in the custody of the Wisconsin Department of Corrections at the New Lisbon Correctional Institution. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging state court convictions for attempted first-degree intentional homicide and armed robbery in Rock County Case No. 2006CF723. Petitioner contends that his trial counsel provided ineffective assistance by (1) failing to call two witnesses who would have testified to petitioner’s misidentification as the assailant, and (2) failing to object to evidence regarding petitioner’s escape from custody. The petition is fully briefed and ready for decision. After considering the parties’ submissions, I conclude that petitioner has failed to show that the Wisconsin courts unreasonably applied federal law regarding ineffective assistance of counsel. Therefore, I will deny the habeas petition.

         FACTS

         The following facts are drawn from the petition, briefs, and state court records.

         Petitioner was charged with attempted first-degree intentional homicide and armed robbery of David Barber, arising out of events occurring on January 7, 2006. Barber was walking to his girlfriend’s house at about 9:00 p.m. when he was approached by a man wearing a hoodie, ski mask, and knit cap. The man put a gun to Barber’s head and told Barber to give him his money. After Barber gave the man the $35 to $40 dollars he had with him, the man told Barber to pull his pants down and walk over by a nearby house. Barber turned around and grabbed the robber’s hand holding the gun, and the two men wrestled with each other. The robber’s cap fell off and mask slipped partially off, so Barber got a look at the robber’s face and hair. After they disengaged from each other, the robber shot Barber three times. Barber was able to run to safety.

         Later, at the hospital, Barber identified his assailant, who he knew by the street name “Burgler.” Barber was able to identify him from the partial view of his face and hair, and because he had a distinctive gait or limp. Barber picked petitioner out of a photo array. Petitioner’s photo was in the array because Barber’s mother, Jaqueline Barber, [1] told police that “Burgler” was Herbert Darden. However, Jaqueline Barber did not know this firsthand; she got this name from a woman named Antoneisha Lyles after calling her from the hospital.[2]

         Petitioner’s theory of defense at trial was that Barber had misidentified petitioner as the man who attacked him. However, defense counsel did not investigate or call two potential witnesses. One potential witness was Lyles, who would have testified that she did not know petitioner as “Burgler” and that she did not remember speaking with Jaqueline Barber about petitioner. The other was Sarah Scales, petitioner’s ex-girlfriend, who would have testified that petitioner did not walk with a limp.

         Also at trial, the state called a police investigator to testify about petitioner’s escape from custody while his charges in this case and in an unrelated Illinois drug case were pending. Defense counsel objected to introducing the escape evidence on the grounds that it was irrelevant, unfairly prejudicial, and was not evidence of flight, but the court overruled his objection. However, counsel did not object specifically on the grounds that petitioner had “independent reasons for flight” that could not be explained to the jury because of their prejudicial effect, under State v. Miller, 231 Wis.2d 447, 605 N.W.2d 567 (Wis. App. 1999).

         On June 19, 2007, the jury found petitioner guilty of attempted first-degree intentional homicide and armed robbery. He was sentenced to 20 years of confinement and 15 years of extended supervision for attempted homicide, to run concurrently with 15 years of confinement with 10 years of extended supervision on the armed robbery charge.

         Petitioner filed a post conviction motion, contending that he received ineffective assistance of counsel. Following a Machner hearing on April 4, 2011, the circuit court found that defense counsel had not performed deficiently, and denied petitioner’s post conviction motion. Dkt. 9-9. Petitioner appealed this denial to the Wisconsin Court of Appeals, contending that the trial court erred when it denied his post conviction motion. Petitioner specifically argued that defense counsel was ineffective for (1) failing to adequately object to testimony regarding petitioner’s escape from police custody in Illinois, and (2) failing to call Lyles and Scales, who would have discredited testimony pertaining to petitioner’s identification. Dkt. 9-3. The Wisconsin Court of Appeals affirmed the trial court’s ruling, concluding that defense counsel did not provide ineffective assistance by failing to make a specific objection regarding escape evidence or by failing to call Lyles or Scales. State v. Darden, 2012 WI.App. 73, 342 Wis.2d 249, 816 N.W.2d 351. The Wisconsin Supreme Court denied petitioner’s petition for review, Dkt. 1-2. Petitioner now seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254.

         ANALYSIS

         A. Review under 28 U.S.C. § 2254(d)

         Petitioner contends that he is entitled to habeas relief because his trial counsel was ineffective by (1) failing to call two witnesses who would have testified to petitioner’s misidentification as the assailant, and (2) failing to object to evidence regarding petitioner’s escape from custody.

         This court’s authority to issue habeas corpus relief for persons in state custody is governed by 28 U.S.C. § 2254, as amended by the Anti terrorism and Effective Death Penalty Act of 1996. Section 2254(d) states:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         Petitioner contends that the state courts unreasonably applied Supreme Court precedent concerning ineffective assistance of counsel. The court may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from Supreme Court opinions but unreasonably applies it to the facts of the particular case. Id. at 407-08.

         This standard places a high burden on petitioner. Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (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, 134 S.Ct. 1697, 1702 (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 ‘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 decision in this case is the Wisconsin Court of ...


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