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Starks v. Dittman

United States District Court, E.D. Wisconsin

May 6, 2019

TRAMELL E. STARKS, Petitioner,
v.
MICHAEL DITTMAN, Respondent.

          DECISION AND ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

         Tramell Starks, a prisoner in Wisconsin custody, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Am. Habeas Petition, Docket # 20.) Starks was convicted of possession of a firearm by a felon and first-degree reckless homicide, and sentenced to fifty-five years in prison, consisting of thirty-six years of initial confinement followed by nineteen years of extended supervision. (Id. at 2.) Starks alleges 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.

         BACKGROUND

         Starks' convictions arose from the 2005 death of Lee Weddle. As summarized by the court of appeals in its 2016 decision, the facts are as follows.

         In 2005, police were dispatched to Lee Weddle's apartment after a neighbor called 911 to report that he heard a fight followed by several gunshots. (State v. Starks, 2016 WI.App. 41, ¶ 2, 369 Wis.2d 223, 880 N.W.2d 182, Docket # 35-33.) Police arrived to find Weddle in a pool of blood, and he died shortly thereafter. (Id.) Law enforcement received an anonymous tip that Starks was the shooter and that Antwon Nellum, Dwayne Rogers, and other unidentified people were present during the shooting. (Id.) Nellum told police he witnessed a fight between Starks and Weddle but left because he thought Starks “was going to do something real crazy.” (Id.) As he was running out of the apartment, he heard four or five gunshots. (Id.) Rogers eventually told police that on the date in question, he witnessed a physical altercation between Starks and Weddle, after which Starks shot Weddle two times. (Id.) Rogers told police he heard Weddle say “man, you killed me, ” and heard three or four more shots as he was leaving the apartment. (Id.)

         At Starks' trial, the State relied on the eyewitness accounts of three men, including Rogers, who testified they were present when the shooting occurred. (Id. ¶ 3.) The other eyewitnesses provided testimony very similar to that of Rogers, though one stated he left the apartment during the fight and was walking to his car when he heard shots fired. (Id.) The State also presented the testimony of Trenton Gray, Starks' cousin. (Id.) Gray testified that on the day of Weddle's murder Starks called him “in a state of distress.” (Id.) As Gray recounted, “he was asking me if he can go to a place that I had been previously in my life up in North Dakota, would he be able to take refuge for some things that he believe[d] he had done.” (Id.) When Gray asked Starks what was going on, he said, “I don't know, cuz, I think I just murdered somebody.” (Id.) Gray stated that in a later conversation, Starks told him about the fight and named the person who provided the gun. (Id.) Gray further testified that Starks told him at a funeral that he wanted to kill another individual he believed “was telling on him about the murder.” (Id.)

         The jury convicted Starks of reckless homicide and possession of a firearm as a felon. (Docket # 35-1.) On appeal, Starks argued he was entitled to a new trial due to an error in the jury instructions, a violation of the court's sequestration order, the State's failure to comply with a discovery demand, and insufficiency of the evidence. (Docket # 35-2.) The court of appeals affirmed. (State v. Starks, No. 2008AP790 (Ct. App. Wis. 2008), Docket # 35-5.)

         Starks then filed a pro se motion for postconviction relief, arguing ineffective assistance of postconviction counsel for failing to raise claims of ineffective assistance of trial counsel. (Docket # 35-23 at 49-72.) The circuit court denied the motion (id. at 155-60), and the court of appeals affirmed on the basis that Starks' ineffective assistance of postconviction counsel claim was procedurally defaulted because Starks had not raised it in an earlier motion he had filed to vacate a DNA surcharge (State v. Starks, No. 2010AP425 (Wis. Ct. App. 2011), Docket # 35-15). The Wisconsin Supreme Court granted review and held that Starks, who was by then represented by counsel, had not defaulted his claim on that basis. (State v. Starks, 2013 WI 69, 349 Wis.2d 274, 833 N.W.2d 146, Docket # 35-27.) Nevertheless, the court upheld the judgment on the grounds that Starks had not met his burden of showing ineffective assistance. (Id.)

         Starks and the State both filed motions for reconsideration, largely agreeing with one another that the opinion contained errors that would be problematic for courts, counsel, and litigants in the future, although correction of these errors likely would not change the outcome for Starks. (Docket # 35-28 at 4-18.) On July 24, 2014, the Wisconsin Supreme Court denied the motion for reconsideration, although not without protest from concurring justices that, while the outcome was correct for Starks, the reasoning of Starks required clarification or correction on some points. (Docket # 35-28 at 2-3, 19-33.)

         On November 20, 2014, Starks filed a new motion for postconviction relief in the circuit court alleging that newly discovered evidence showed that the prosecution's “star witness, ” Trenton Gray, had perjured himself and fabricated his testimony against Starks. (Docket # 35-30 at 12.) The circuit court denied Starks' motion without an evidentiary hearing and the court of appeals upheld the denial. (State v. Starks, No. 2014AP2915 (Wis. Ct. App. 2016), Docket # 35-33.) On October 11, 2016, the Wisconsin Supreme Court denied Starks' petition for review. (Docket # 35-35.)

         On December 17, 2014, Starks filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court. (Habeas Petition, Docket # 1.) The case was stayed pending resolution of the state court proceedings on Starks' claim of newly discovered evidence entitling him to a new trial. (Docket # 15.) On November 7, 2016, I reopened the case. (Docket # 19.)

         Starks filed an amended petition on November 11, 2016 to include the newly discovered evidence claim. (Docket # 20.) Starks thereafter filed a motion to expand the record to include copies of recorded phone conversations with Gray in which Gray allegedly admitted to testifying falsely at Starks' trial. (Docket # 24.) I denied this motion on the basis that § 2254(d)(1) limits review to the record that was before the state court that adjudicated the claim on the merits. (Docket # 33.) Starks also moved to amend his petition for a second time to add grounds of deficient jury instructions and a sequestration order violation (Docket # 22), which I denied on the basis that they were filed after the statute of limitations period and did not arise from the same core facts as the claims in the original pleading (Docket # 33). Starks' amended petition (Docket # 20) is now the operative petition in this case. The petition has been fully briefed and is ready for resolution.

         STANDARD OF REVIEW

         Starks' petition is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court decision on the merits of the petitioner's claim (1) was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1); or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2).

         A state court's decision is “contrary to . . . clearly established Federal law as established by the United States Supreme Court” if it is “substantially different from relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow application of the “contrary to” clause:

[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of habeas corpus . . . where the state court applied a rule that contradicts the governing law as expounded in Supreme Court cases or where the state court confronts facts materially indistinguishable from a Supreme Court case and nevertheless arrives at a different result.

Washington, 219 F.3d at 628. The court further explained that the “unreasonable application of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

         To be unreasonable, a state court ruling must be more than simply “erroneous” and perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). Under the “unreasonableness” standard, a state court's decision will stand “if it is one of several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). In Morgan v. Krenke, the court explained that:

Unreasonableness is judged by an objective standard, and under the “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” 232 F.3d 562, 565-66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S.

951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at Habeas relief is available only for state court decisions that are contrary to federal law. This court may not review whether a state court properly applied its own state laws. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).

         “The operative decision under review is that of the last state court to address a given claim on the merits.” Harris v. Thompson,698 F.3d 609, 623 (7th Cir. 2012) (citing Greene v. Fisher,565 U.S. 34 (2011). In this case, there are three operative decisions: (1) the court of appeals decision of December 23, 2008 adjudicating, inter alia, Starks' Brady claim (Docket # 35-5); (2) the Wisconsin Supreme Court decision of July 12, 2013 on Starks' ineffective assistance of counsel claims (Docket ...


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