United States District Court, E.D. Wisconsin
MARK W. STERLING, Petitioner,
MICHAEL A. DITTMAN, Respondent.
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. NO. 1)
PAMELA PEPPER United States District Judge.
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
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.'”
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.
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.
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?
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?
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
THE COURT: Well, there's not much time between now and
[PROSECUTOR]: I understand.
THE COURT: Because there's not going to be a final
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.
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.
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 ...