United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
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.
following facts are drawn from the petition, briefs, and
state court records.
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.
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,
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.
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.
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).
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.
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.
Review under 28 U.S.C. § 2254(d)
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.
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:
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;
(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.
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.
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