Sterling v. Meisner

Filing 22

ORDER signed by Judge Pamela Pepper on 2/21/2017 DENYING 1 Petition for Writ of Habeas Corpus filed by Mark W Sterling and DISMISSING case. (cc: all counsel; by US Mail to petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARK W. STERLING,
Petitioner,
v.

Case No. 14-cv-252-PP

MICHAEL A. DITTMAN,
Respondent.
______________________________________________________________________________
DECISION AND ORDER DENYING
PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1)
______________________________________________________________________________
Petitioner 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 petition.
I.

BACKGROUND
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.,

1

¶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.’” Id.
The 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.
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A 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.
The 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?
[PROSECUTOR]: Yes.
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 isTHE COURT: I mean if the State believes this
happened the way that Mr. Gaines-Gaines, is that his
name?
[PROSECUTOR]: Yes.
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 recklesslyreckless injury[?] I don't understand that myself, but-

3

[PROSECUTOR]: Well, Judge, there’s time between
now and trial. I’m certain those things will be
considered yet again.
THE COURT: Well, there’s not much time between now
and trial.
[PROSECUTOR]: I understand.
THE COURT: Because there’s not going to be a final
pretrial.
Id.
“Approximately 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.
The 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.
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The 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 all of the
petitioner’s arguments and affirmed his convictions. Id. The Wisconsin
Supreme Court denied review. Dkt. No. 13-7.
The petitioner then filed another post-conviction motion in the trial
court, raising new claims of ineffective assistance of trial counsel and a claim
that his post-conviction counsel was ineffective for failing to raise the claims of
trial counsel’s alleged ineffectiveness in his initial post-conviction proceedings.
State v. Sterling, 2013 WI App 94, ¶4, 835 N.W.2d 290, 349 Wis. 2d 525
(“Sterling II”), Dkt. No. 13-11. The trial court denied those motions. Id., ¶6. The
Wisconsin Court of Appeals affirmed on the ground that the petitioner had
procedurally defaulted those claims by failing to support them with sufficient
factual allegations. Again, the Wisconsin Supreme Court denied review. Dkt.
No. 13-13.
II.

ANALYSIS
A. Standards of Review
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) a

state prisoner is entitled to seek habeas relief on the ground that he is being
held in violation of federal law or the U.S. Constitution. 28 U.S.C. §2254(a). But
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when a state court already has adjudicated the petitioner’s claim on the merits,
AEDPA precludes habeas relief unless the state court’s decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or “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).
“Clearly established Federal law” refers to the holdings of the Supreme
Court that existed at the time of the relevant state court adjudication on the
merits. Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 44 (2011); Williams v.
Taylor, 529 U.S. 362, 412 (2000). A decision is “contrary to” federal law if the
state court applied an incorrect rule—i.e., one that “contradicts the governing
law” established by the Supreme Court—or reached an outcome different from
the Supreme Court’s conclusion in a case with “materially indistinguishable”
facts. Williams, 529 U.S. at 405–06. A state court unreasonably applies federal
law when it “identifies the appropriate standard but applies it to the facts in a
manner with which a reasonable court would disagree.” Etherly v. Davis, 619
F.3d 654, 660 (7th Cir. 2010) (citing Williams, 529 U.S. at 413, and Williams v.
Thurmer, 561 F.3d 740, 742–43 (7th Cir. 2009) (per curiam)). “Mere error” is
not enough to overcome AEDPA deference; instead, the state court’s decision
must be objectively unreasonable, Etherly, 619 F.3d at 660, meaning it is
“beyond any possibility for fairminded disagreement,” Mosley v. Atchison, 689
F.3d 838, 844 (7th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)).
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B. The Wisconsin Court of Appeals’ Denial of the Petitioner’s Claims of
Ineffective Assistance of Trial Counsel Was Not an Unreasonable
Application of Supreme Court Precedent.
In grounds one and four of the petition, the petitioner alleges two claims
of ineffective assistance of trial counsel that are not procedurally defaulted and
which this habeas court can review.1 In ground one, he argues that his trial
counsel was ineffective for failing to object to statements made by the trial
judge during the pre-trial hearing, in which the court asked the prosecutor
whether the facts of the case supported a heightened charge of attempted
murder. In ground four, he argues that his trial counsel was ineffective for
misleading him about whether the prosecutor could file an amended
indictment and increase the charges against him.
1. The petitioner’s trial counsel was not ineffective for not objecting to the
trial judge’s comments to the prosecutor about the charges brought
against the petitioner.
The petitioner contends the trial court improperly interfered with the
prosecutor’s charging decision by commenting that the facts of the case
appeared to support more severe charges than those initially brought against
the petitioner. He alleges that his counsel rendered ineffective assistance by
failing to object to the court’s statements. Applying the standards from
Strickland v. Washington, 466 U.S. 668 (1994), the Wisconsin Court of Appeals
concluded that the petitioner did not succeed in showing that his trial counsel

As discussed in Section E, infra, the petitioner alleged numerous other claims
of ineffective assistance of trial and post-conviction counsel, most of which the
petitioner procedurally defaulted in the state courts by failing to plead them
with adequate specificity.
1

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was ineffective, because the trial court’s remarks were not improper and did
not interfere with the prosecutor’s decision to amend the indictment.
In order for this court to grant habeas relief on this claim, the court must
conclude that the Wisconsin court decided this claim in a manner that was
contrary to, or involved an unreasonable application of, the principles
announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1994). Under Strickland, a claim of ineffective assistance of counsel has
two parts:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Id. The court’s review under Strickland is deferential, and applying Strickland
under the AEDPA (which itself also requires deference) results in a double level
of deference to the state court determination. Knowles v. Mirzayance, 556 U.S.
111, 123 (2009).
The Wisconsin Court of Appeals’ decision is not contrary to controlling
Supreme Court precedent, because the court identified the proper legal
standards under Strickland and evaluated the petitioner’s ineffective assistance
of counsel claims under those standards. Hinesley v. Knight, ___ F.3d ___,
2016 WL 4758437, *7 (7th Cir. Sep. 13, 2016). Nor was the Court of Appeals’
ruling an unreasonable application of Strickland. The Wisconsin Court of
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Appeals concluded that “the record is clear that the trial court did not explicitly
order the prosecutor to amend the charges against” the petitioner. Id., ¶19.
Rather, the appeals court characterized the trial court’s remarks as an attempt
“to ensure that if an additional charge was brought it was brought in a timely
manner.” Id., ¶20.
The Wisconsin Court of Appeals also concluded that the petitioner had
“presented no evidence that the trial court’s impromptu remarks actually
affected the prosecutor’s decision to amend the information.” Id., ¶21. Having
placed the trial court’s remarks in context, and with no evidence that those
remarks influenced the prosecutor’s charging decision, the Wisconsin Court of
Appeals characterized the petitioner’s contention—that if his trial counsel had
objected, it could have prevented the prosecutor from amending the charges—
as “entirely speculative.” Dkt. No. 13-5 at 10. The court finds no basis to
conclude that the state court’s resolution of this claim involves an
unreasonable application of Strickland to the facts of the case. The court will
deny this claim.
2. The petitioner’s trial counsel was not ineffective for failing to advise the
petitioner that the prosecutor could file more severe charges before trial.
The petitioner claims that he decided not to accept the state’s offer to
plead guilty to first-degree reckless injury because his trial counsel misled him
into believing that the state could not upgrade the charges contained in the
initial charging document. He raised this issue in the state courts through a
post-conviction motion under Wis. Stat. §974.06, which the trial court denied
after an evidentiary hearing. The Wisconsin Court of Appeals affirmed,
9

concluding that the claim lacked merit because (1) the petitioner’s lawyer
testified that he repeatedly advised the petitioner that the state could amend
the charges if the petitioner did not accept the plea offer; and (2) the petitioner
testified that he was present in court when the prosecutor stated that she was
considering whether to amend the charges against the petitioner. Dkt. No. 1311, at 6-7.
The court finds that the Wisconsin appellate court’s decision is neither
an unreasonable application of Strickland nor unreasonable in light of the
evidence presented. The Wisconsin state court’s factual findings are presumed
to be correct. See 28 U.S.C. §2254(e)(1); Jean-Paul v. Douma, 809 F.3d 354,
360 (7th Cir. 2015) (“A state court’s factual finding is unreasonable only if it
ignores the clear and convincing weight of the evidence.”) (internal quotation
marks omitted). To overcome that presumption, the petitioner must
demonstrate by clear and convincing evidence that the state court’s
determination is unreasonable. Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir.
2012) (“After AEDPA, . . . the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.”) (internal
quotation marks omitted).
Based on the record, the court cannot conclude that the state court’s
factual determination that the petitioner’s trial counsel did not mislead him
about whether the state could file more severe charges before trial was
unreasonable. The trial court held an evidentiary hearing on the petitioner’s
claim. At that hearing, the petitioner’s trial counsel testified that he advised
10

Sterling on more than one occasion that the charges against Sterling could be
amended if he did not accept the plea bargain. Sterling II, ¶13. The petitioner
“testified that he was present in court when the prosecutor stated that she
would be considering whether to amend the charges against him.” Id. Based on
this testimony, the trial court concluded that the petitioner’s trial counsel had
advised him that the charges against him could be increased, and denied relief
on this claim. The Wisconsin appellate court concluded that the record
supported the trial court’s findings. The petitioner has not established that the
state court’s determination is unreasonable, and the court will deny habeas
relief on this claim.
C. The Wisconsin Court of Appeals Did Not Unreasonably Apply
Controlling Supreme Court Precedent in Determining that the Trial
Judge Was Not Biased Against the Petitioner.
In ground two of the petition, the petitioner argues that the state trial
judge “play[ed] the role of prosecutor and judge” by asking the assistant district
attorney why the petitioner had not been charged with attempted murder. Dkt.
No. 18 at 8. He contends that the trial judge acted “as the states [sic] advocate”
by raising the question whether the facts of the case would have supported a
more severe charge. Id. at 6. According to the petitioner, the state courts
unreasonably applied clearly established Supreme Court precedent in
concluding that the judge’s comments to the prosecutor were not improper.
“[T]he appearance of justice is important in our system and the due
process clause sometimes requires a judge to recuse himself without a showing
of actual bias, where a sufficient motive to be biased exists.” Del Vecchio v. Ill.
11

Dep’t of Corr., 31 F.3d, 1363 1371 (7th Cir. 1994). “Every procedure which
would offer a possible temptation to the average man as a judge . . . not to hold
the balance nice, clear, and true between the state and the accused denies the
latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 532 (1927). However,
“opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do
not constitute a basis for a bias or partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994). “Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or even hostile
to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. Id. Such remarks may, on the other hand, support a claim
of bias or partiality “if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.” Id.
The Wisconsin Court of Appeals concluded that the petitioner had failed
to “demonstrate[] that the trial court was actually biased against him . . . [T]he
trial court did not direct or order the prosecutor to amend the charges to
include the attempted murder charge. The decision remained within the
prosecutor’s discretion.” Sterling I, ¶26. That court also highlighted the fact
that the trial judge did not express his opinion on what the facts of the case
were, but rather “couched [his] question with the word ‘if,’ asking why the
prosecutor was not charging attempted murder ‘if the State believes this
12

happened the way that Mr. Gaines . . . said it did.’” Id. The Wisconsin Court of
Appeals also rejected the petitioner’s arguments that the trial judge was biased
against him, or appeared to be so, reasoning that the “trial court’s use of the
word ‘if’ demonstrates that the trial court had no actual opinion on Sterling's
guilt but was merely trying to ensure that justice was fairly and efficiently
administered.”
This court cannot conclude that the Wisconsin Court of Appeals’
determination was unreasonable. The trial court’s question to the prosecutor
did not reflect the judge’s opinion as to the facts of the case or the petitioner’s
guilt or innocence; the question was based on the factual scenario laid out by
the prosecution. The trial court’s question demonstrates that the trial court
was attempting to understand the prosecution’s charging decision, not to
influence it, and also was trying to make sure that the prosecution was aware
of the looming trial date. Nothing in the transcript shows that the trial court
was biased against the petitioner or had an interest in a particular outcome.
The court will deny relief on this claim.
D. The Wisconsin Court of Appeals Did Not Unreasonably Apply
Controlling Supreme Court Precedent in Determining that the Trial
Court did not Violate the Petitioner’s Confrontation Clause Rights.
In ground three of the petition, the petitioner alleges that the trial court
violated his Sixth Amendment right to cross-examine a state’s witness
regarding whether the witness expected leniency in exchange for his testimony
against the petitioner. In Washington v. Texas, 388 U.S. 14, 19 (1967), the
Supreme Court held:
13

The right to offer the testimony of witnesses . . . is in
plain terms the right to present a defense, the right to
present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where
the truth lies. Just as an accused has the right to
confront the prosecution’s witnesses for the purpose of
challenging their testimony, he has the right to present
his own witnesses to establish a defense. This right is
a fundamental element of due process of law.
In Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986), the Supreme
Court stated that “[t]he Confrontation Clause of the Sixth Amendment
guarantees the right of an accused in a criminal prosecution ‘to be confronted
with the witnesses against him . . . to secure for the opponent the opportunity of
cross-examination.” (citing Davis, 415 U.S. 308, 315-16 (1974) (internal
quotations and citations omitted). But, the Court said, this did not mean that
trial judges could not impose any limits on cross-examination: “trial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.” Id. at 679.
Thus, “the Confrontation Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” Id. (quoting Delaware v. Fensterer,
474 U.S. 15, 20 (1985)). A Sixth Amendment violation occurs when the
defendant shows that he was denied the opportunity to elicit testimony that
would be “relevant and material to the defense.” United States v. Vasquez, 635
F.3d 889, 895 (7th Cir. 2011) (citing United States v. Williamson, 202 F.3d
14

974, 979 (7th Cir.2000). But “the denial of the opportunity to cross-examine an
adverse witness does not fit within the limited category of constitutional errors
that are deemed prejudicial in every case.” Fensterer, 474 U.S. at 682.
Here, the petitioner claims that the trial court erred when it prohibited
him from cross-examining Gaines about whether he expected leniency from the
prosecutor or the trial court in exchange for testifying against the petitioner at
trial. As the Wisconsin Court of Appeals explained, when the petitioner went to
trial, “Gaines was also facing criminal charges, pending before the same court
presiding over [the petitioner’s] case, for being a felon in possession of a
firearm.” Sterling I, ¶32. The petitioner contends that he should have been able
to ask Gaines on cross-examination whether Gaines believed that he would
receive leniency in his criminal case if he testified against the petitioner. The
trial court found that this information was irrelevant and refused to allow the
petitioner to cross-examine Gaines as to his motive for testifying against the
petitioner.
On appeal, the Wisconsin Court of Appeals recognized “that evidence of
pending charges against a witness, even absent promises of leniency, may
reveal ‘a prototypical form of bias.’” Id., ¶36 (quoting State v. Barreau, 2002 WI
App 198, ¶55, 257 Wis. 2d 203, 651 N.W.2d 12). That court reasoned, however,
that this case was different, because Gaines was not merely a witness, but the
victim of the crime for which the petitioner was on trial. The court also found
that Gaines’ testimony was consistent with the statement that he had given to
police immediately after the shooting and days before the police found him in
15

possession of a weapon. The court noted that Gaines had no leniency
agreement with the prosecutor, so the petitioner’s “theory that the mere hope
for leniency could make Gaines a bias or partial witness when weighed against
the violence perpetrated against him by Sterling and his co-actors is simply not
reasonable.” Id., ¶39.
This court cannot conclude that the Wisconsin Court of Appeals’ decision
was contrary to or an unreasonable application of Supreme Court precedent.
That court recognized that a criminal defendant’s right to cross-examine
witnesses against him is guaranteed by the Sixth and Fourteenth
Amendments. Although that court did not expressly rely on Supreme Court
decisions involving the Confrontation Clause in its analysis, the cases that
court cited for the applicable legal standards—Barreau and Stuart—did, and
the court concludes that the state court evaluated the petitioner’s claims using
the correct standard.
The court further concludes that the Wisconsin Court of Appeals’
decision did not unreasonably apply Supreme Court precedent in deciding that
the trial court did not err by preventing the petitioner from cross-examining
Gaines about the criminal charges he was facing at the time of trial. The right
to cross-examination is not unfettered, and the trial court had the discretion to
limit confusing or irrelevant cross-examination. Because Gaines’ testimony
tracked his original statement to the police, and because he and the prosecutor
had no agreement under which Gaines would receive leniency in exchange for
his testimony, the court concludes that the Wisconsin Court of Appeals did not
16

unreasonably conclude that the trial judge correctly precluded crossexamination into this issue.2 Accordingly, the court will deny habeas relief on
this claim.
E. This Court Cannot Review the Petitioner’s Remaining Claims of
Ineffective Assistance of Counsel Because They Were Procedurally
Defaulted in the State Post-Conviction Proceedings.
The respondent argues that the court cannot review the petitioner’s
remaining claims of ineffective assistance of trial and post-conviction counsel
(grounds five through thirteen of the petition), because his motion under
§974.06 failed to plead his claims with sufficient specificity, were not reviewed
on the merits in state court, and thus were procedurally defaulted. The court
agrees.
A claim is procedurally defaulted—and barred from federal review—if the
last state court that rendered judgment “‘clearly and expressly’ states that its
judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263
(1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)). “When a
state-law default prevents the state court from reaching the merits of a federal
claim, that claim can ordinarily not be reviewed in federal court.” Ylst v.
Nunnemaker, 501 U.S. 797, 801 (1991). In other words, a federal habeas court

The Wisconsin Court of Appeals also concluded that even if the petitioner’s
Confrontation Clause rights had been violated, the error would have been
harmless. Id., ¶40 (citing State v. Stuart, 2005 WI 47, 279 Wis. 2d 659, 695
N.W.2d 259). Because the court has concluded that the Wisconsin Court of
Appeals’ conclusion that the trial court did not violate the petitioner’s rights
under the Confrontation Clause was not unreasonable, the court will not
evaluate the state court’s harmless error finding as an alternative basis for its
decision.
2

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may not review a petitioner’s claims when a state court has declined to review
them on the merits “pursuant to an independent and adequate state
procedural rule,” unless the petitioner can demonstrate either cause for the
default and resulting prejudice, or that the failure to consider the claims will
result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 750 (1991).
Federal courts will not entertain questions of federal law in a §2254
petition when the state procedural ground relied upon in the state court “is
independent of the federal question and adequate to support the judgment.”
Id., 501 U.S. at 729. The independent and adequate state ground doctrine
serves the doctrines of federalism and comity, because “when a federal habeas
court releases a prisoner held pursuant to a state court judgment that rests on
an independent and adequate state ground, it renders ineffective the state rule”
and “ignores the State’s legitimate reasons for holding the prisoner.” Id. at 730.
An independent state ground exists “when the court actually relied on
the procedural bar as an independent basis for its disposition of the case.”
Thompkins v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012) (citing Kaczmarek v.
Rednour, 627 F.3d 586, 592 (7th Cir. 2010)). A state law ground is adequate
“when it is a firmly established and regularly followed state practice at the time
it is applied.” Id. When considering whether a state court decision rests on a
state procedural default, federal courts are to look to “the last explained state
court judgment.” Ylst, 501 U.S. at 805.

18

The Wisconsin Court of Appeals’ June 4, 2013 opinion affirming the trial
court’s denial of the petitioner’s second set of §974.06 motions is the “last
explained state-court judgment,” so the court looks to the reasoning in that
opinion to adjudicate the petitioner’s present habeas petition. Id. In affirming
the circuit court’s denial of the petitioner’s §974.06 motion, the Wisconsin
Court of Appeals relied on the rule set forth in the Wisconsin Supreme Court’s
decision in State v. Balliette, which governs whether or not a petitioner is
entitled to an evidentiary hearing in connection with a §974.06 motion. State v.
Sterling, 2004 WI 106, ¶¶8-9, 274 Wis. 2d 568, 682 N.W.2d 433. Quoting
Balliette, the court evaluated whether the petitioner’s “’motion raise[d]
sufficient facts that, if true, show[ed] that the [petitioner] [was] entitled to relief
. . . .’” Id., ¶8 (quoting Balliette, 2011 WI 79, ¶¶63-65, 349 Wis. 2d 525, 835
N.W.2d 332). The trial court denied all but one of the petitioner’s claims
without a hearing. The court of appeals concluded that the petitioner’s
ineffective assistance of post-conviction counsel claims “fell short” because they
amounted to a “general assertion” that his post-conviction counsel was
ineffective. Id., ¶10.
The ineffective assistance of post-conviction counsel can constitute a
sufficient reason for failing to raise an ineffective assistance claim on direct
appeal or in a prior motion. Sterling II, ¶7 (citing State ex rel. Rothering v.
McCaughtry, 205 Wis. 2d 675, 681-62, 556 N.W.2d 136, 140 (Ct. App. 1996)).
The Wisconsin Court of Appeals concluded, however, that Sterling’s §974.06
motion did not satisfy Balliette because it did not demonstrate why it was
19

deficient performance for post-conviction counsel not to raise these issues Id.,
¶10. Because the Wisconsin Court of Appeals clearly relied on Balliette’s
procedural rule in concluding that Sterling’s §974.06 motion was insufficient to
entitle him to a hearing or state a claim for relief, the court finds that the
Balliette rule is an independent state ground for denying Sterling’s remaining
ineffective assistance of counsel claims.
The court’s review of the adequacy of Balliette’s procedural requirements
as a state ground for denying relief “is limited to whether it is a firmly
established and regularly followed state practice at the time it is applied.” Lee
v. Foster, 750 F.3d 687, 694 (7th Cir. 2014). The Seventh Circuit previously
has answered this question, stating that this “rule is a well-rooted procedural
requirement in Wisconsin and is therefore adequate.” Id. (citing State v.
Negrete, 343 Wis. 2d 1, 819 N.W.2d 749, 755 (2012); State v. Balliette, 336
Wis. 2d 358, 805 N.W.2d 334, 339 (2011); State v. Love, 284 Wis. 2d 111, 700
N.W.2d 62, 68–69 (2005); State v. McDougle, 347 Wis. 2d 302, 830 N.W.2d
243, 247–48 (Ct. App. 2013)). Consequently, the court finds the state
procedural requirement relied upon by the Wisconsin Court of Appeals to be
both an independent and adequate for denying relief.
The court cannot review the petitioner’s remaining ineffective assistance
of counsel claims on the merits because they are procedurally defaulted; the
petitioner has not shown cause and prejudice to excuse his default nor has he
shown that a fundamental miscarriage of justice will result if the court does
not review his defaulted claims on the merits.
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III.

The Court Will Not Issue A Certificate Of Appealability.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the

court must consider whether to issue a certificate of appealability. A court may
issue a certificate of appealability only if the applicant makes a substantial
showing of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The
standard for making a “substantial showing” is whether “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (internal quotation marks omitted).
Where a district court has rejected a petitioner’s constitutional claims on
the merits, “the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Id., 529
U.S. at 484. Where a district court dismisses a habeas petition based on
procedural grounds without reaching the underlying constitutional claims,
however, a certificate of appealability “should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. Each showing is a threshold inquiry; the court need
address only one component if that particular showing will resolve the issue.
Id. at 485.
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In the present case, the court concludes that its decision to deny the
petition is neither incorrect nor debatable among jurists of reason. Therefore,
the court does not issue a certificate of appealability.
IV.

CONCLUSION
For the reasons explained above, the court the court DENIES the

petition, Dkt. No. 1, and DISMISSES the case. The court will enter judgment
accordingly.
Dated in Milwaukee, Wisconsin this 21st day of February, 2017.

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