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Shirley v. Dittmann

United States District Court, E.D. Wisconsin

March 1, 2018



          NANCY JOSEPH, United States Magistrate Judge

         Richard W. Shirley, a prisoner in Wisconsin custody, was sentenced to 35 years of confinement followed by 10 years of extended supervision after a jury convicted him of one count of first degree reckless homicide, in violation of Wis.Stat. § 940.02(1). (Docket # 1 at 2.) He filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 claiming that his conviction and sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be denied and the case dismissed.


         On March 18, 2008, Shirley was charged with one count of first-degree intentional homicide. (Ct. App. Decision in 2012AP263-CR, Docket # 1-1 at 2.) The allegations concerned the fatal shooting of Frederick Perry at a gas station on Teutonia Avenue in Milwaukee. (Id.) Shirley went to trial, and the jury convicted him of the lesser-included offense of first-degree reckless homicide. (Id. at 4.)

         Officer David Martinez

         Officer David Martinez was the first witness to testify. (Tr. of Jury Trial, June 17, 2008 p.m., Docket # 13-13 at 35.) Martinez worked as a police officer in District 7, and was working the day of the shooting-February 16, 2008. (Id. at 36.) He testified that he heard the call about the shooting around 12:49 p.m. and that he and his partner responded to the Citgo gas station on Teutonia Avenue. (Id. at 36-37.) When they arrived, Martinez saw a person lying on the ground on his back. (Id. at 37.) Upon approaching the person, he saw that the person had blood coming from his mouth and from the back of his head. (Id.) The person was unresponsive, and Martinez testified he immediately started CPR as he could not find a pulse. (Id.) When the Milwaukee Fire Department arrived and took over, he went inside the gas station to see if there was video surveillance and to see if there were any witnesses. (Id. at 38.)

         Martinez testified that when he came back outside, a woman came across the police line toward the crime scene. (Id. at 41.) She was visibly upset and crying, and the officers had to place hands on her to stop her from proceeding into the scene. (Id.) The woman told the officers that she heard that her boyfriend, whom she identified as Richard Shirley, had been shot. (Id. at 42.) Martinez contacted his operator to see if he could get more information about Shirley and he learned that Shirley walked with a substantial limp due to missing a portion of one of his legs. (Id. at 43.) Martinez testified that neither he nor anyone else (to his knowledge) came across a person matching Shirley's description at the scene. (Id. at 45.)

         Jacquell Hawthorne

         Jacquell Hawthorne testified that Frederick Perry (the victim) was his first cousin. (Id. at 48.) On February 16, 2008, Hawthorne rode to the Citgo gas station on Teutonia in his uncle Udalius McCloud's car (a blue Cadillac) around 11:30 a.m. or 12:00 p.m. to get cigars and batteries. (Id. at 48-49.) Perry was also in the car, seated in the front passenger seat. (Id. at 49.) McCould pulled up to a pump; the pump was on the passenger side and the car was facing the gas station. (Id. at 49-50.) Another car, a burgundy Oldsmobile, pulled up on the other side of the pump. (Id. at 51-52.) The passenger went into the gas station. (Id. at 52-53.) McCloud also went into the gas station. (Id. at 54.) When McCould came back out of the gas station, he commented that he saw a big gun on the seat in the Oldsmobile. (Id. at 55.) Hawthorne testified that Perry then made a comment to the driver, whom he later identified as Shirley (id. at 57), about the music coming from the Oldsmobile (id. at 55-56). Shirley told Perry that he would show him the sound system, which was in the trunk. (Id. at 56.)

         Hawthorne testified that McCloud and Perry met Shirley at the back of the Oldsmobile. (Id.) It was his impression that the three of them were having a friendly conversation. (Id. at 59.) Hawthorne testified that Perry had a gun in the waistband of his pants; he was able to tell because Perry “clutched it when he was in the back [of] the car when they was lookin' at the speakers.” (Id. at 114.) After a few minutes, McCloud and Perry returned to the car. (Id. at 59.) Perry got back into the car, and Hawthorne testified that McCloud was about to get back into the car when Shirley came over to the passenger side of their car. (Id.) Specifically, Shirley went from the back of his car to the front of the car on the driver's side. (Id. at 115.) Hawthorne testified that Shirley walked with a limp. (Id. at 60, 122.) When Shirley got to Perry's door, Shirley pulled a gun from the waistband on his pants. (Id. at 61, 115.) Hawthorne testified that he remembered telling a detective shortly after the incident that Shirley asked if they knew anyone who wanted to buy the gun and that he had another .357 in the back of the car. (Id. at 62-63.) At that point, Perry and Shirley began to struggle over the gun. (Id. at 64.) Hawthorne testified that as Perry and Shirley struggled, the gun went off. (Id. at 65.) Hawthorne remained in the car, and eventually, Perry was out of the passenger seat and outside the car with Shirley. (Id. at 65-66.) Then, a bullet came through the back passenger side window. (Id. at 66.) Hawthorne testified that at that point, he and McCloud got out of the car and went around to the back of the Cadillac and ducked. (Id. at 67.) He continued to hear shots, though he was not sure how many. (Id.) He was not looking at Shirley and Perry and could not see what was happening. (Id. at 67-68.)

         Hawthorne testified that when Shirley stood up, Perry was on the ground. (Id. at 68.) At that point, he ran toward the street. (Id.) Shirley ran over to his car. (Id. at 69.) Hawthorne testified that he went back to the gas station lot. (Id. at 70.) Perry was lying on the ground, and Hawthorne testified that there was blood in his hair and “a shot laying right by his armpit.” (Id. at 70-71.) Perry's head was faced toward the Cadillac. (Id. at 93, 94-95.)

         Udalius McCloud

         Udalius McCloud also testified. Frederick Perry was his nephew, and he was with him during the late morning, early afternoon on February 16, 2008. (Tr. of Jury Trial, June 19, 2008 a.m., Docket # 13-14 at 5.) They were at a Citgo gas station on the corner of Teutonia and Hampton in Milwaukee; they drove there in McCloud's Cadillac. (Id.) McCloud testified that Perry was in the front passenger seat, and his nephew “Quell” (Jacquell Hawthorne) was in the back on the passenger side. (Id. at 6-7.) He pulled up to a pump at the Citgo, and the car was facing the gas station. (Id. at 7-8.) He went to the gas station to buy batteries for his iPod; there were no plans to buy a gun. (Id. at 62.) McCloud went into the gas station, and when he came back out a brown car was pulling up. (Id. at 8-9.) The car had two occupants and was playing loud music. (Id. at 9.) The passenger went into the gas station, and McCloud testified he could not really describe him. (Id. at 10.) The driver, McCloud noted, walked with a limp. (Id. at 11.) McCloud testified that he also noticed that the driver had a gun. (Id.)

         Once McCloud noticed that the driver had a gun, he went to get into his own car. (Id. at 12.) McCloud testified that the driver liked the Cadillac he was driving and that he had never seen this person before. (Id. at 36.) Perry started asking about the music and complimenting the sound system. (Id. at 12-14.) The driver asked Perry if he wanted to see the sound system, which was in the trunk. (Id. at 15.) McCloud testified that he told Perry that the driver had a gun, but Perry got out of the car anyway. (Id.) Perry went to the trunk of the other vehicle, and McCloud testified that he got out of his car to look at the sound system, “[g]lanced at it a little bit and got right back in the car, yeah.” (Id. at 16.) McCloud testified there was no argument or struggle between Perry and the driver while they were looking at the sound system in the trunk. (Id. at 17.) This was just a friendly exchange. (Id. at 37.) After Perry and the driver talked about the sound system, Perry returned to the car. (Id. at 16-17.) According to McCloud, Perry asked the driver of the vehicle about the gun. (Id. at 19.) The driver then came over to the car. (Id.) Perry sat in the front passenger seat, where he had been seated before, when the driver of the other car came to McCloud's car. (Id. at 18.) The driver stood right in the open door, holding the gun in his hand. (Id. at 20.) The barrel was facing down. (Id.) The driver handed Perry the gun, and McCloud testified the driver was smiling; there was no argument going on. (Id. at 20-21.) McCloud testified that he told Perry to get the gun out of the car. (Id. at 22.) He further testified that Perry pulled back the slide and saw that there was a bullet in the chamber, and Perry asked the driver why he would hand him a gun with “one in the hole.” (Id. at 22-23.) The driver kept smiling and responded to not worry about it, that he still had one more. (Id. at 22-24.)

         McCloud testified that after the driver responded, “he jumped in the car.” (Id. at 24.) The first time the gun went off, Perry was still in the front passenger seat. (Id. at 25-26.) Then, Perry and the driver started “tussling.” (Id.) McCloud testified that he left the vehicle when he heard the first shot. (Id. at 26.) Hawthorne also got out of the car, and the two of them ran down Hampton towards AutoZone.[1] (Id.) As they ran, McCloud looked back before getting to the auto parts store and saw the driver (Shirley) getting up off the ground. (Id. at 38.) They came back to the gas station, and the other car was no longer there. (Id. at 31-32.) McCloud testified that they found Perry and that he called for an ambulance. (Id. at 32.) Perry was lying on his back, and he and Hawthorne did not try to move him. (Id. at 58, 60.) The police arrived, and McCloud stayed there and spoke to the police. (Id. at 32-33.) Eventually, he went down to the station and participated in a lineup. (Id. at 34.) McCloud testified that he was not able to identify anyone as the driver of the other vehicle. (Id.) Finally, McCloud testified that neither he nor Hawthorne had a gun, and Perry only had a gun when the driver of the other vehicle handed it to him. (Id. at 35.)

         McCloud spoke with a detective, at which time he told the detective that he thought Perry might try to keep the gun that the driver had handed to him. (Id. at 46, 49.) Later, he testified that Perry told him that if the driver gave him the gun, the driver wasn't likely to get it back. (Id. at 61-62, 67-68.) McCloud testified that he agreed that he told the detective that he repeatedly told Perry to give back the gun. (Id. at 50.) According to McCloud, Perry asked the driver why he would hand him a gun with a bullet in the chamber. (Id.) When Perry pointed the gun toward the driver and made that statement, the driver reached in and tried to grab the gun back. (Id.) A struggle ensued, and then shots were being fired. (Id. at 51.) McCloud testified that once the gun started going off, he and Hawthorne got out of the car and away from the gunfire. (Id.) He testified that everything “happened so fast.” (Id.)

         Angela Ortenblad

         Angela Ortenblad testified that around 12:30 or 12:35 p.m. on February 16, 2008, she was driving her car down Hampton (eastbound, towards Teutonia Avenue), heading to work for a 1:00 p.m. shift. (Id. at 75-76.) She stopped at the intersection of Hampton and Teutonia, about seven or eight car lengths away from where Teutonia intersected Hampton. (Id. at 76.) She heard a noise to her left, drawing her attention towards the gas station. (Id. at 76-77, 83.) Ortenblad testified that at first she thought it might have been a car backfiring. (Id. at 77.) When she looked towards the gas station, she saw one man standing up and another man lying on the ground near a car by one of the pumps. (Id.) A red-colored car was parked there, and on the other side of the pump there was a blue car. (Id. at 78-80.) The man who was standing was by the passenger side front tire of the red car. (Id. at 80.) He was angled away from her, and she could only see the left side of his body; she could not really see his face. (Id. at 81.) The man on the ground was in front of the man who was standing; she could only see his head and chest as the rest of his body was behind the car. (Id. at 82.) The person on the ground's body was oriented east-west, with his head facing west. (Id. at 94-95.) His legs and feet were behind the car from her view from the road. (Id. at 95.) Ortenblad testified that she then heard a series of the same noise she heard earlier and figured out it was gunshots. (Id. at 82.) There were a couple of shots in rapid succession, a “very, very slight pause, ” and then one or two more shots. (Id. at 84.) She called 911 after she heard the last shot. (Id. at 82, 106.) Ortenblad testified she thought the whole thing took four to five seconds and that it was definitely less than ten seconds. (Id. at 94.)

         After the second round of shots, the man turned around. (Id. at 84.) Ortenblad testified she was able to see him with a gun in his right hand, which was at chest level. (Id.) She described the man as African-American and noted that he was hopping on one leg. (Id. at 86, 92.) Ortenblad could not state for sure which leg he was hopping on. (Id. at 92.) He hopped from where he was by the passenger side, around the front of the car, and opened his car door and got in. (Id. at 86.) Ortenblad testified that she did not know if that car ever left the lot because the light turned green and she “drove out of there as fast as [she] could.” (Id. at 87.) She was still on the phone with the 911 operator. (Id.) Ortenblad was asked to go to the police station and participate in a photo lineup. (Id. at 90.) She could not identify the person she saw with the gun. (Id. at 91.)

         During her interview with police, Ortenblad and the officers reenacted the incident as best they could and determined that it lasted approximately four to five seconds from start to finish. (Id. at 93.) During the interview, she told the detective that she heard four to five shots. (Id.)

         At the trial, Ortenblad used a diagram to demonstrate where her car was in relation to the gas station. (Id. at 96-98.) There were approximately seven or eight cars in front of her when she stopped at the stoplight. (Id. at 98.) Ortenblad also participated in a physical demonstration with Shirley's attorney to show how far apart the victim and the defendant were. (Id. at 102-103.) She identified where she saw the victim's head (id.) and which direction the victim's head was facing (west) (id. at 98-99). Ortenblad thought the other man was standing near the victim's stomach or hips. (Id. at 100-101.) She then heard three or four more shots. (Id. at 110.) The man with the gun then, as she testified earlier, hopped around the car to get into the driver's seat. (Id. at 111.) She also indicated on the diagram where the red car and the blue Cadillac were located-next to each other at gas pumps. (Id. at 106, 108-10.) From her vantage point, she could see the victim from approximately right below the armpit and up. (Id. at 104.) She testified that the person was motionless. (Id.)

         Amardeep Khehra

         Amaradeep Khehra is a manager at a Citgo gas station on North Teutonia Avenue. (Id. at 114.) His uncle owns the gas station, and Khehra has been working there since April 2002. (Id.) He was working by himself on February 16, 2008 from 8:00 a.m. to 8:00 p.m. (Id. at 114-15.) Khehra testified he works at the cash register, which is behind bulletproof glass. (Id. at 115.) There is a small opening where people hand in money. (Id.) Khehra testified that from where he works, he is able to look out of the window and see all of the pumps. (Id. at 115-16.) On February 8, 2016, a blue Cadillac pulled into the station and parked at pump eight. (Id. at 116.) Someone from the Cadillac came into the store and bought a cigar. (Id.) He recognized the person as having been in the store before. (Id. at 116-17.)

         Khehra testified that between 12:32 and 12:40 p.m., he heard gunshots. (Id. at 117.) At the time he heard the shots, the Cadillac had pulled into the gas station and the person who came into the store had come in and then left. (Id. at 117-18.) Khehra remembered a total of four shots. (Id. at 118.) After he heard the first two, he looked out the window and saw a gun in someone's hand in the air. (Id.) He then dialed 911. (Id.) The person holding the gun was facing away from Khehra and toward the pump and Teutonia, standing to the left of the blue Cadillac. (Id. at 118, 125.) Khehra testified that there was a person behind the man holding the gun who was trying to get the gun. (Id. at 120.) His right hand was over the person who was holding the gun's right hand, struggling to get the gun. (Id. at 120-21.) Two other people ran away from the scene; they had been with the victim. (Id. at 138.) The two men struggling “were joined totally.” (Id. at 143.)

         Once Khehra heard the shots, he saw another car-a maroon color Oldsmobile-had pulled up to pump nine. (Id. at 122.) He heard two more shots and ducked down. (Id. at 127.) When he stood back up, he saw a body lying on the ground and another person limping to his car by pump nine. (Id.) The person on the ground was the person trying to grab the gun from the person holding it. (Id. at 127-28.) The person who was limping was limping on his right leg. (Id. at 129.) He got back into his vehicle and drove away, going west on Hampton. (Id.) The 911 operator asked Khehra to check on the condition of the victim, so Khehra went outside. (Id. at 130-31.) The victim was not moving or breathing. (Id. at 131.) Khehra testified that on February 20, 2008, a detective came to the gas station to retrieve a video that captured the incident. (Id.)

         Erik Villarreal

         Erik Villarreal is a detective with the Milwaukee Police department and, at the time of the trial, had worked for the department since 1991 and been a detective since 1998. (Tr. of Jury Trial, June 19, 2008 p.m., Docket # 13-15 at 11.) Villarreal had been working as a homicide detective for approximately five years. (Id.) On February 16, 2008, Villarreal responded to a Citgo station on the corner of West Hampton Avenue and North Teutonia Avenue to investigate the scene. (Id. at 12.) Villarreal testified that investigating entails processing the scene for evidence. (Id.) In processing the scene, evidence was collected and photographs were taken. (Id.)

         Villarreal testified that he observed the victim, who was found in a supine position on his back with multiple gunshot wounds. (Id. at 13.) He testified that the victim had a gunshot wound under his right armpit, in his back, and in his head. (Id. at 14.) The victim's head was facing northeast and his feet were facing southwest. (Id. at 16.) During the course of the investigation, he learned that the blue Cadillac parked at the gas station was the victim's car or the car the victim was in. (Id.)

         In going through photographs of the scene, Villarreal identified a photograph that depicted two holes in the window of the rear passenger side door. (Id. at 19, 21.) As to one of the holes, he testified it appeared that a gunshot or gunshots passed through the window and struck the roof of the car. (Id. at 21.) He was not able to determine what caused the second hole. (Id. at 21-22.) Villarreal testified that he believed, based on his training and experience, that the shot that hit the roof of the car would have come from below the window. (Id. at 23.) Villarreal also testified that the location of the bullet casings was indicative of where the shots were fired (the passenger side of the blue Cadillac), and that a possible shoe impression was left on the right front quarter panel of the car, which could indicate a struggle occurred. (Id. at 24-25, 29.) In the trunk of the car, officers found a receipt for the purchase of a .45 caliber pistol. (Id. at 33.) The casings found at the scene were 9 millimeter casings. (Id. at 34.) Villarreal testified that they also found AAA Duracell batteries and Swisher Sweet cigars in the victim's car. (Id. at 34-35.) Once the majority of the scene investigation was completed, Villarreal had the victim's car moved because he believed the car had been hit with a bullet during the incident. (Id. at 36.) He did locate a bullet underneath the car. (Id.)

         During his testimony, Villarreal left the witness stand to explain a diagram he completed in the course of his investigation. (Id. at 42.) He testified that the incident took place mostly near pump seven. (Id. at 43.) Casings recovered from the scene showed that there was a lot of movement as to where the gun was located. (Id. at 74.) Villarreal could not say if one person was moving around with the gun or two people were struggling with the gun; the casing were not conclusive as to who had the gun and where. (Id. at 78.) Blood found near another pump (pump nine) belonged to Shirley. (Id. at 59.) Villarreal testified that Shirley was not at the scene when he arrived nor at any time while he was there investigating the scene (for several hours). (Id. at 76.)

         Scott Gastrow

         Scott Gastrow is a homicide detective with the Milwaukee Police Department. (Id. at 83-84.) At the time of the trial, he had worked for the department for 23 years, as a detective for 13 years, and as a homicide detective for six. (Id. at 84.) In working on the investigation that involved Shirley, he interviewed witnesses at the scene, including Jaquell Hawthorne and Angela Ortenblad. (Id. at 84-85.) He note that he took Ortenblad back to the scene to have her show them exactly where she was positioned inside her vehicle. (Id. at 85.) They parked the squad car where Ortenblad stated her car was stopped and then took photographs. (Id. at 85-86.) Gastrow testified that he was also the officer that showed the photo array to Hawthorne, who identified Shirley. (Id. at 89-90.)

         Michele Kemp

         Michele Kemp testified that on February 16, 2008, she stopped at the Citgo gas station on the corner on Teutonia and Hampton to buy a bag of chips. (Tr. of Jury Trial, June 20, 2008 a.m., Docket # 13-16 at 11-12.) She testified that she went in through the entrance closer to Hampton, and as she entered, she heard a couple of noises. (Id. at 12.) She did not know what the noises were. (Id.) Then, she heard a couple more, glanced and saw a couple of people, one of whom had just fallen down. (Id.) Kemp testified she could remember that there were cars in the lot when she pulled up; she knew there was one between pumps two and four and another between seven and eight. (Id. at 13.) There was also a “card that was along the side, ” which kept her from going in the first entrance. (Id.) A blue Cadillac was parked closer to the pump when she pulled into the lot. (Id. at 13-14.)

         Kemp testified that she heard the first shots when she was pulling into the lot. (Id. at 16.) She stopped once she realized what she was hearing was gunshots. (Id.) She saw two people at the pumps in front of the corner of the building. (Id. at 17.) Kemp could not describe either person, though she again noted that one of them fell or “dropped down.” (Id.) This person's back was towards her, and the other person was in front of him and facing toward her. (Id. at 17-18.) She testified she did not remember many details because everything happened so fast. (Id. at 18.) She heard a “total of maybe five shots.” (Id. at 19.) She heard the first two, stopped driving, heard another, and then ducked down because she realized she was hearing gunshots. (Id.) When she peaked up again, she saw two people running past-one in front of the other. (Id. at 20.) After that, she assumed everything was okay and drove around and parked in front of the store. (Id. at 21.)

         Susan ...

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