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Sterling v. Meisner

United States District Court, E.D. Wisconsin

February 21, 2017

MARK W. STERLING, Petitioner,
v.
MICHAEL A. DITTMAN, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1)

          HON. PAMELA PEPPER United States District Judge.

         Petitioner Mark W. Sterling, representing himself, filed a petition for a writ of habeas corpus under 28 U.S.C. §2254. His petition raises a number of Sixth Amendment ineffective assistance of trial and post-conviction counsel claims, a claim arising under the Confrontation Clause of the Sixth Amendment, and a claim that the state court judge who presided over his trial court proceedings was biased against him. For the reasons explained below, the court denies the petition.

         I. BACKGROUND

         The following facts come from the Wisconsin Court of Appeals' decision affirming the petitioner's conviction on direct appeal. State v. Sterling, 2010 WI.App. 84, 787 N.W.2d 59, 326 Wis.2d 265 (“Sterling I”), Dkt. No. 13-5. “On November 25, 2007, [Demetrius] Gaines was exiting his vehicle after parking it on the street in front of his home on West Custer Avenue in Milwaukee.” Id., ¶2. He saw “a dark colored SUV approaching him, ” which he recognized “as belonging to Shekita Bell. Bell testified that on November 25, 2007, she loaned her SUV to her cousin, Earl Stewart.” Id. The SUV stopped about five to seven feet in front of Gaines, and when a door to the SUV opened, Gaines recognized a man named Charles Lamar pointing a gun at him. Id., ¶3. Gaines also recognized the driver as the petitioner, and a man he knew as “Fat Dre” as one of the passengers in the car, along with another man he did not recognize. Id. “Gaines testified that Lamar instructed him to ‘[g]et in' the SUV and that he got into the back seat of the SUV behind the driver because: ‘I didn't know if they was going to do anything to me right there or whatever. So, . . . I'm thinking to get in the car or get shot and killed right here. So, I chose to get in the car.'” Id.

         The passengers in the car then questioned Gaines about the location of an assault rifle. Id., ¶ 4. After Lamar put a gun to Gaines' head, Gaines “'rampaged the door'” and jumped from the SUV as it was moving.” “Gaines testified that he ‘fell in the street, . . . rolled about twice . . . got to [his] feet and started running towards traffic.'” Id., ¶5. The SUV made a U-turn to follow him Id. Gaines heard gunshots as he ran toward traffic; he was hit by two cars, and then he “felt pain in his leg and fell.” Id. After the SUV stopped next to him, Gaines “heard between four and six shots ring out. Gaines was ultimately shot four times-twice in the left leg, once in the right leg, and once in the lower back.” He testified that “when he felt a burning sensation in his back, he put his ‘head down like [he] was dead and that is when [he] heard them peel off.'” Id.

         A detective met Gaines at the hospital on the night Gaines was shot. The detective testified that “Gaines was very cooperative during questioning and had no trouble responding to any of his questions.” Id., ¶6. “[A]t trial Gaines denied remembering anything that he told the police, ” but the detective “testified that Gaines was able to identify Sterling and Lamar as passengers in the SUV and that Gaines was able to identify the SUV as belonging to Bell.” Id.

         The petitioner was charged with first-degree reckless injury and false imprisonment. Id., ¶7. At a pre-trial hearing, after the petitioner had informed the court that he had rejected the State's initial plea offer and intended to proceed to trial, the trial court and the prosecutor had the following discussion:

THE COURT: Are these the charges [first-degree reckless injury and false imprisonment] the State is going forward on if he's going to trial?
[PROSECUTOR]: Yes.
THE COURT: Why not attempted murder?
[PROSECUTOR]: Well, I thought under the circumstances this was the best way to proceed. I can reconsider. At this point this is-THE COURT: I mean if the State believes this happened the way that Mr. Gaines-Gaines, is that his name?
[PROSECUTOR]: Yes.
THE COURT: Gain[e]s said [it] did, that the people in the car did a U-turn, came back at him and were shooting at him and he got hit four times, why isn't that attempted murder with maybe a lesser included or an additional charge of first degree recklessly-reckless injury[?] I don't understand that myself, but-
[PROSECUTOR]: Well, Judge, there's time between now and trial. I'm certain those things will be considered yet again.
THE COURT: Well, there's not much time between now and trial.
[PROSECUTOR]: I understand.
THE COURT: Because there's not going to be a final pretrial.

Id.

         “Approximately two and one-half months later . . . the prosecutor filed an amended information charging Sterling with attempted first-degree intentional homicide and false imprisonment.” Id., ¶8. A jury found the petitioner guilty of attempted first-degree intentional homicide and false imprisonment. Id. The court sentenced him to serve thirty-six years of incarceration on the attempted first-degree intentional homicide charge (twenty-two years of initial confinement and fourteen years of extended supervision), and six years of incarceration on the false imprisonment charge (three years of initial confinement and three years of extended supervision, to be served concurrent to the sentence imposed on the attempted first-degree murder charge). Id., ¶9.

         The petitioner then filed post-conviction motions arguing that he was deprived of an impartial tribunal, alleging that the trial court improperly interfered with the State's charging decision, and that his trial counsel rendered ineffective assistance by failing to object to the trial court's alleged improper interference with the State's charging decision. The trial court denied those motions. Id., ¶10.

         The petitioner appealed his conviction and the trial court's denial of his post-conviction motions to the Wisconsin Court of Appeals. Id., ¶1. On appeal, the petitioner added a new claim, alleging “that he was deprived of his Sixth Amendment right to confront the witness against him when the trial court prohibited him from questioning Demetrius Gaines (the victim) about his motives for testifying.” Id., The Wisconsin Court of Appeals rejected ...


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