United States District Court, W.D. Wisconsin
MARK J. MEY, Petitioner,
REED RICHARDSON, Respondent.
OPINION & ORDER
D. PETERSON District Judge
Mark J. Mey, a Wisconsin prisoner incarcerated at the Stanley
Correctional Institution, seeks a writ of habeas corpus under
28 U.S.C. § 2254. He challenges a state conviction from
the Dane County Circuit Court for three counts of being party
to attempted homicide and three counts of being party to
endangering safety by use of a firearm. I screened his
petition and allowed him to proceed with an ineffective
assistance of counsel claim.
argues that his trial counsel was ineffective for (1)
allowing gang-related evidence to be admitted during the
trial and (2) failing to object to an erroneous jury
instruction where the trial court mistakenly stated that Mey
had pleaded guilty. As for the gang-related evidence, Mey has
not shown that his trial attorney's performance was
deficient or that the attorney's error prejudiced him. As
for the jury instruction, the attorney's failure to
object to the erroneous jury instruction could be deficient,
but Mey has not shown that he was prejudiced by his
attorney's failure to object. Accordingly, I will deny
case is about a shooting between two rival gangs, the Crips
and the Bloods. In July 2005, Mey was a member of the Crips,
who decided to “up his standing” within the Crips
by “ripping off” a high-ranking member of the
Bloods, Sombath Lo, also known as “Fat Boi.” Dkt.
11-8, at 540. Mey and two others stole about $7, 000, along
with a .22 lemon-squeeze pistol from Lo. Id. The
next day, Lo found out what Mey had done and ordered an SOS
(shoot-on-sight) on Mey. But a few other Bloods, who were
relatives of Mey, decided that they would not let Mey be
killed. Mey learned about the SOS on him and decided to carry
out a “preemptive strike, ” with the help of
other Crips and some Bloods who chose their familial ties
with Mey over their gang allegiance. Id., at 553.
They carried out the attack on August 9, 2005, in the Village
of Oregon, Wisconsin, where they shot and injured three
least 11 individuals participated in the shooting. Mey and
three other co-defendants went to trial. Mey's defense
was that he was not one of the shooters. Dkt. 11-5, at 359-65
(Mey's opening statement); Dkt. 11-8, at 604-40 (closing
argument by Mey's attorney). After a two-week trial, the
jury found each of the defendants guilty on six counts: three
counts of being party to attempted first-degree intentional
homicide and three counts of being party to endangering
safety by use of a firearm. The court sentenced Mey to 24
years of initial confinement and 9 years of extended
supervision. Dkt. 11-2, at 34-35.
habeas petition, Mey challenges two aspects of his
attorney's performance during the trial: the
attorney's failure to object to (1) admission of
“gang-related evidence” and (2) the circuit
court's erroneous instruction to the jury that Mey had
the trial began, the defense attorneys collectively sought to
prevent the state from introducing evidence of gang
affiliations and gang activities. Dkt. 11-4, at 296-97. The
state argued that the gang-related evidence was to provide
“context to complete the story”- i.e., the Crips
versus Bloods rivalry-whereas the defense argued that the
gang evidence was “prejudicial and unnecessary.”
Id. at 297. The circuit court rejected the
defense's argument and explained that the evidence was
relevant, but it also ruled that the state could not
“make gratuitous use” of the gang-related
evidence to suggest that the defendants were guilty solely
because of their gang affiliations. Id. at 300-01.
In response to the ruling, Mey's attorney proposed a
limiting instruction on gang-related evidence, which the
court adopted. Id. at 300. That instruction directed
the jury not to infer guilt based on testimony about gang
affiliation. Dkt. 11-2, at 94.
the trial, the state and the defense both elicited
gang-related evidence. Indeed, gang rivalry and violence
among gang members turned out to be pretty much the whole
case for both sides at trial. Mey's attorney did not
object either to the state's or co-defendants' use of
gang-related evidence and the attorney himself elicited
testimony about gangs.
close of the trial, the court instructed the jury on the
elements of attempted first-degree intentional homicide. Dkt.
11-8, at 509-12. The court gave this instruction three times,
once for each count. During the instruction on the first
count, the court told the jury that “[t]o this charge,
each of the defendants before you has entered a plea of
not guilty, which means the State must prove every
element of the offense charged beyond a reasonable
doubt.” Id. at 510 (emphasis added). But
during instruction on the second and third counts, the court
omitted the word “not” and told the jury as
To this charge, each of the defendants before you has entered
a plea of guilty, which means that the State must
prove every element of the offense charged beyond a
Id. at 551-52 (emphasis added). The parties agree
that the instruction should have been read “not
guilty.” No attorney in the courtroom-the prosecutor or
any of the defense attorneys- objected.
is some doubt whether the court actually omitted the word
“not.” Stakes were high for all parties, and
there were five experienced attorneys in the courtroom. But
the trial transcript shows that the court omitted the word
“not, ” id., so I will presume, for the
purposes of this opinion, that the circuit court did omit it.
appealed with the help of his appellate counsel, arguing that
the state had insufficient evidence and that the jury should
have been instructed to a possible lesser-included offense.
Dkt. 11-2, at 185. The Wisconsin Court of Appeals affirmed.
Id. at 279. The Wisconsin Supreme Court denied
Mey's petition for review. Id. at 321.
then returned to the circuit court and moved for
postconviction relief, pro se. Id. at 128. Before
the circuit court, he raised three arguments:
(1) his trial counsel was ineffective for allowing
gang-related evidence beyond the scope of the circuit
court's pretrial order;
(2) the circuit court erred by allowing the introduction of
gang-related evidence; and
(3) the circuit court erred by telling the jury that Mey had
Id. at 131-48. The circuit court denied Mey's
motion in an oral ruling. Dkt. 11-9, at 58. Mey appealed, but
he raised slightly different arguments before the Wisconsin
Court of Appeals:
(1) his attorney was ineffective for allowing the state and
co-defendants to elicit gang-related evidence;
(2) the circuit court erred by giving the erroneous jury
(3) the circuit court erred by misapplying the standards
promulgated under State v. Escalona-Naranjo, 185
Wis.2d 168, 517 N.W.2d 157 (1994).
Dkt. 11-3, at 8-40. The Wisconsin Court of Appeals affirmed
the circuit court's denial of postconviction relief.
Id. at 452. The Wisconsin Supreme Court denied
Mey's petition for review. Id. at 534.
then filed his habeas petition with this court. In support of
his petition, he raised four grounds:
(1) his attorney was ineffective for failing to object to the
state's use of gang evidence as contrary to the
court's pretrial rulings;
(2) his attorney was ineffective for failing to object to the
co-defendants' attorneys' use of gang evidence;
(3) his attorney was ineffective for presenting the jury with
highly prejudicial gang evidence; and
(4) his attorney was ineffective for failing to object to the
trial court's errors in ...