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Mey v. Richardson

United States District Court, W.D. Wisconsin

April 19, 2017

MARK J. MEY, Petitioner,
v.
REED RICHARDSON, Respondent.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Petitioner 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.

         Mey 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 Mey's petition.

         BACKGROUND

         This 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 victims.

         At 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.[1]

         In this 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 pleaded guilty.

         A. Gang-related evidence

         Before 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.

         During 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.

         B. Jury instruction

         At the 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 follows:

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 reasonable doubt.”

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.

         There 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.

         C. Procedural history

         Mey 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.

         Mey 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 pleaded guilty.

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 instruction; and
(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.

         Mey 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 ...

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