Farr v. Pollard
Filing
25
DECISION AND ORDER DENYING 1 PETITION FOR WRIT OF HABEAS CORPUS signed by Magistrate Judge David E Jones on 9/25/19. IT IS FURTHER ORDERED that this action is DISMISSED and that a certificate of appealability is DENIED. (cc: all counsel - via US Mail to Petitioner)(kah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONNELL DONYELL FARR,
Petitioner,
v.
Case No. 17-CV-798
WILLIAM J. POLLARD,
Respondent.
DECISION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
In 2011, Ronnell Donyell Farr was sentenced to life in prison after a
Wisconsin jury convicted him of the first-degree murder of Michael Bender outside a
Milwaukee nightclub. Mr. Farr filed a post-conviction motion, arguing that his trial
lawyer failed to investigate key evidence. He further argued that his post-conviction
lawyer erred in failing to allege that his trial lawyer was ineffective, the prosecutor
engaged in misconduct, and the trial court abused its discretion in allowing certain
evidence to be presented. The state courts rejected Mr. Farr’s arguments, finding
that he had not demonstrated that either lawyer exhibited deficient performance or
that he was prejudiced by his lawyers’ alleged errors. Mr. Farr is currently serving
his sentence at Dodge Correctional Institution in Waupun, Wisconsin.
In June 2017, Mr. Farr filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging that he is in custody in violation of the United States
Constitution because his trial and post-conviction lawyers provided ineffective
assistance of counsel. The respondent maintains that Mr. Farr has not satisfied his
burden of proving that his claims merit relief under the deferential standards set
forth in § 2254. The Court agrees. Because the state court’s decision denying Mr.
Farr’s claims was not objectively unreasonable, Farr is not entitled to relief under
§ 2254. The Court therefore will deny his federal habeas petition.
I. Background
On March 28, 2010, Michael Bender was shot and killed outside Quarters
nightclub in Milwaukee’s Riverwest neighborhood. See Exhibit 2 to Answer to
Petition for a Writ of Habeas Corpus, ECF No. 20-2:7. A few days later, Ronnell
Farr was arrested and interrogated about Bender’s death. See id. at 7–12. After
several interrogations, Mr. Farr confessed to Detective Rodolfo Gomez that he had
shot Bender, id. at 11–12, though he claimed the shooting was unintentional, see id.
at 23.
A. Circuit Court proceedings
On April 5, 2010, Mr. Farr was charged in Milwaukee County Circuit Court
with first-degree intentional homicide with the use of a dangerous weapon. Id. at
14. Prior to trial, Mr. Farr filed a motion to determine the admissibility of his
statements to law enforcement. Id. Following a hearing, the Circuit Court concluded
that Mr. Farr’s statement to Detective Gomez was voluntary and could be used at
trial. See Exhibit 25 to Answer, ECF No. 20-25; Exhibit 26 to Answer, ECF No. 2026:1–35.
2
The case was tried before a jury in February 2011. See Answer Ex. 26;
Exhibit 27 to Answer, ECF No. 20-27; Exhibit 28 to Answer, ECF No. 20-28; Exhibit
29 to Answer, ECF No. 20-29; Exhibit 30 to Answer, ECF No. 20-30; Exhibit 31 to
Answer, ECF No. 20-31; Exhibit 32 to Answer, ECF No. 20-32; Exhibit 33 to
Answer, ECF No. 20-33. At trial, Mr. Farr testified that he recognized Bender
inside Quarters as the man who stole his designer eyeglasses and shot him back in
August 2009. See Answer Ex. 30, 67:3–81:17. He later saw Bender outside the club
and decided to “run up on him and take [his] glasses back.” Id. at 88:11–89:9. Mr.
Farr pointed the gun at Bender, not intending to shoot, but the gun fired multiple
times. Id. at 88:22–89:18. He then fled the scene. Id. at 89:19–90:8.
As part of his defense, Mr. Farr called Detective Gomez to testify about the
statement Farr made to him. Detective Gomez testified that he assisted in a live
lineup involving Mr. Farr on April 3, 2010. Answer Ex. 31, at 77:23–78:2. According
to Detective Gomez, while escorting Mr. Farr back to the prisoner processing
section, Farr lamented that he didn’t mean to kill Bender. Id. at 78:3–79:18.
The jury ultimately found Mr. Farr guilty of intentional homicide. See
Exhibit 33 to Answer, ECF No. 20-33. He was sentenced to life in prison with
eligibility for release to extended supervision after forty years. See Exhibit 34 to
Answer, ECF No. 20-34; see also Exhibit 1 to Answer, ECF No. 20-1.
B. Post-conviction proceedings
Mr. Farr was appointed new counsel for post-conviction proceedings. See
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a Person in
3
State Custody at 11–12, ECF No. 1, He “filed a motion for a new trial alleging
violations of his constitutional rights and trial court error.” Answer Ex. 2, at 49. The
trial court denied the motion without a hearing. See id. at 49–51.
Mr. Farr appealed, arguing that his confession to Detective Gomez was
involuntary, the Circuit Court erred in determining that the confession was
voluntary and failing to make a Miranda finding, evidence derived from the
involuntary confession—including an interview with an alleged accomplice—should
have been excluded, and a new trial was warranted in the interests of justice. See
Attachments to Habeas Petition at 1, ECF No. 1-1; see also Answer Ex. 2; Exhibit 3
to Answer, ECF No. 20-3; Exhibit 4 to Answer, ECF No. 20-4. On February 18,
2014, the Wisconsin Court of Appeals issued a decision affirming Mr. Farr’s
judgment of conviction and the order denying his post-conviction motion. See
Exhibit 5 to Answer, ECF No. 20-5; see also State v. Farr, Appeal No. 2013AP504CR, 2014 Wisc. App. LEXIS 133 (Wis. Ct. App. Feb. 18, 2014). The court determined
that judicial estoppel barred Mr. Farr’s claim concerning his confession, the police
would have interviewed the alleged accomplice regardless of Mr. Farr’s confession,
and the case did not warrant discretionary reversal. See id. ¶¶ 4–12.
Mr. Farr sought review of the appellate court’s decision. See Exhibit 6 to
Answer, ECF No. 20-6; Exhibit 7 to Answer, ECF No. 20-7. The Wisconsin Supreme
Court summarily denied his petition for review on August 4, 2014. See Exhibit 8 to
Answer, ECF No. 20-8. Mr. Farr did not file a petition for certiorari in the United
States Supreme Court. See Pet. at 4.
4
Proceeding without the assistance of counsel, on August 14, 2015, Mr. Farr
filed a motion for post-conviction relief seeking a new trial pursuant to Wis. Stat.
§ 974.06 and State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136 (Wis. Ct. App.
1996). See Exhibit 9 to Answer, ECF No. 20-9:63. He argued that his post-conviction
lawyer was ineffective for failing to raise claims of ineffective assistance of trial
counsel, prosecutorial misconduct, and abuse of discretion by the trial court. See id.
at 63–71. The Circuit Court rejected these arguments and denied the motion
without a hearing. See id.
Mr. Farr appealed again. See Answer Ex. 9; Exhibit 10 to Answer, ECF No.
20-10; Exhibit 11 to Answer, ECF No. 20-11. On November 16, 2015, the Wisconsin
Court of Appeals issued a decision affirming the denial of Mr. Farr’s § 974.06
motion. See Exhibit 12 to Answer, ECF No. 20-12; see also State v. Farr, Appeal No.
2015AP1901, 2016 Wisc. App. LEXIS 749 (Wis. Ct. App. Nov. 16, 2016). The court
held that trial counsel was not ineffective for failing to investigate, post-conviction
counsel was not ineffective for failing to challenge alleged prosecutorial misconduct,
and the trial court had properly exercised its discretion in managing the challenged
evidence. See id. ¶¶ 7–42.
Again, Mr. Farr sought review of the appellate court’s decision. See Exhibit
13 to Answer, ECF No. 20-13; Exhibit 14 to Answer, ECF No. 20-14. The Wisconsin
Supreme Court summarily denied his petition for review on March 13, 2017. See
Exhibit 15 to Answer, ECF No. 20-15.
5
C. Federal habeas proceedings
On June 6, 2017, Mr. Farr filed a federal habeas petition alleging ineffective
assistance of trial and post-conviction counsel. See Attach. to Pet. at 3–8. The
matter was randomly assigned to this Court, and all parties have consented to
magistrate-judge jurisdiction. See Consent to Proceed Before a Magistrate Judge,
ECF Nos. 6 & 11 (citing 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b)). The Court has
jurisdiction over Mr. Farr’s petition under 28 U.S.C. § 1331. The petition is fully
briefed and ready for disposition. See Petitioner’s Supporting Memorandum, ECF
No. 2; Respondent’s Brief in Opposition, ECF No. 23; Petitioner’s Reply, ECF No.
24.
II. Standard of Review
Federal habeas corpus review is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214. Under
AEDPA, a prisoner in custody pursuant to a state-court judgment of conviction is
entitled to federal habeas relief only if he is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). With
respect to claims adjudicated on the merits in state court, a federal court can grant
an application for a writ of habeas corpus “only if the state court’s decision was
contrary to clearly established Supreme Court precedent, involved an unreasonable
application of such precedent, or was based on an unreasonable determination of
the facts in light of the evidence presented in state court.” Promotor v. Pollard, 628
6
F.3d 878, 888 (7th Cir. 2010) (citing 28 U.S.C. § 2254(d)); see also White v. Woodall,
134 S. Ct. 1697, 1702 (2014).
“A legal principle is ‘clearly established’ within the meaning of [§ 2254(d)(1)]
only when it is embodied in a holding of [the Supreme Court].” Thaler v. Haynes,
559 U.S. 43, 47 (2010) (citing Carey v. Musladin, 549 U.S. 70, 74 (2006); Williams v.
Taylor, 529 U.S. 362, 412 (2000)). A state-court decision is “contrary to” clearly
established federal law if “the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a
case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at 412–13 (opinion of O’Connor, J.).
Similarly, a state-court decision results in an “unreasonable application” of
clearly established federal law when that court either “identifies the correct
governing legal rule from [Supreme Court] cases but unreasonably applies it to the
facts of the particular state prisoner’s case” or “unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Id. at 407. A writ of habeas corpus may not issue under the
“unreasonable application” clause “simply because the federal court concludes that
the state court erred. Rather, the applicant must demonstrate that the state court
applied the Supreme Court’s precedent in an objectively unreasonable manner.”
Kubsch v. Neal, 838 F.3d 845, 859 (7th Cir. 2016) (citing Woodford v. Visciotti, 537
U.S. 19, 24–25 (2002)). Thus, the petitioner “must show that the state court’s ruling
7
. . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded disagreement.”
Kubsch, 838 F.3d at 859 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). For purposes of federal habeas
review, state-court factual determinations are entitled to “substantial deference.”
Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). To obtain relief under § 2254(d)(2),
a petitioner must demonstrate that the state-court decision “rests upon fact-finding
that ignores the clear and convincing weight of the evidence.” McManus v. Neal, 779
F.3d 634, 649 (7th Cir. 2015) (quoting Goudy v. Basinger, 604 F.3d 394, 399 (7th
Cir. 2010)); see also 28 U.S.C. § 2254(e)(1). “The decision must be ‘so inadequately
supported by the record as to be arbitrary and therefore objectively unreasonable.’”
Alston v. Smith, 840 F.3d 363, 370 (7th Cir. 2016) (quoting Ward v. Sternes, 334
F.3d 696, 704 (7th Cir. 2003)).
When applying the above standards, federal courts look to “the ‘last reasoned
state-court decision’ to decide the merits of the case, even if the state’s supreme
court then denied discretionary review.” Dassey v. Dittmann, 877 F.3d 297, 302 (7th
Cir. 2017) (quoting Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013)).
III. Discussion
Mr. Farr alleges that he is in custody in violation of the Constitution because
his trial and his post-conviction lawyers provided ineffective assistance of counsel.
8
Attach. to Pet. at 3–8. He asks the Court to overturn his judgment of conviction or,
in the alternative, grant a new trial or an evidentiary hearing. Pet. at 12.
A. Applicable law
Criminal defendants have a constitutional right “to the effective assistance of
counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). To succeed on an ineffective-assistanceof-counsel claim, a habeas petitioner “must show both that counsel’s representation
fell below an objective standard of reasonableness, and that there exists a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Kimmelman v. Morrison, 477 U.S. 365,
375 (1986) (citing Strickland, 466 U.S. at 688, 694). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. “[C]ourts need not address both prongs of Strickland” if the petitioner
makes an inadequate showing as to one. Atkins v. Zenk, 667 F.3d 939, 946 (7th Cir.
2012) (citing Strickland, 466 U.S. at 697).
“Judicial scrutiny of counsel’s performance must be highly deferential.”
Strickland, 466 U.S. at 689. On habeas review, “[t]he question ‘is not whether a
federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was unreasonable—a
substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, when a Strickland
claim is evaluated under § 2254(d)(1), the standard of review is said to be “doubly
9
deferential.” See Mirzayance, 556 U.S. at 123 (citing Yarborough v. Gentry, 540 U.S.
1, 5–6 (2003) (per curiam)).
Although “[t]he general Strickland standard governs claims of ineffective
assistance of appellate counsel as well as trial counsel,” Makiel v. Butler, 782 F.3d
882, 897 (7th Cir. 2015) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)), a
“special gloss” applies when a habeas petitioner challenges “the selection of issues
to present on appeal,” Makiel, 782 F.3d at 897. “Appellate counsel is not required to
present every non-frivolous claim on behalf of her client.” Id. (citing Mason v.
Hanks, 97 F.3d 887, 893 (7th Cir. 1996)). Indeed, the “process of winnowing out
weaker arguments . . . is the hallmark of effective appellate advocacy.” Makiel, 782
F.3d at 897 (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)).
Appellate counsel’s performance is thus deficient under Strickland “only if
she fails to argue an issue that is both ‘obvious’ and ‘clearly stronger’ than the
issues actually raised.” Makiel, 782 F.3d at 898 (quoting Brown v. Finnan, 598 F.3d
416, 425 (7th Cir. 2010); Lee v. Davis, 328 F.3d 896, 900–01 (7th Cir. 2003)).
“Proving that an unraised claim is clearly stronger than a claim that was raised is
generally difficult ‘because the comparative strength of two claims is usually
debatable.’” Makiel, 782 F.3d at 898 (quoting Shaw v. Wilson, 721 F.3d 908, 915
(7th Cir. 2013)).
B. Analysis
Mr. Farr claims that he was denied the effective assistance of counsel when
his lawyer failed to investigate and prepare for trial. Attach. to Pet. at 3–4. He
10
further claims that his post-conviction lawyer provided constitutionally deficient
representation in three respects: failing to allege that Mr. Farr’s trial lawyer was
ineffective; failing to allege that Mr. Farr’s trial was tainted by prosecutorial
misconduct; and failing to allege that the trial court abused its discretion when it
allowed the State to present certain demonstrative evidence. Id. at 4–8.
1. Whether Mr. Farr is entitled to relief under § 2254 on his
failure-to-investigate claims
Mr. Farr first claims that his trial lawyer was ineffective for introducing his
statement to Detective Gomez and that his post-conviction lawyer was ineffective
for failing to raise this issue on appeal. He alleges that his trial lawyer didn’t fully
investigate the statement and thus didn’t recognize that Detective Gomez’s police
report conflicted with Mr. Farr’s version of events. If his lawyer had, according to
Mr. Farr, he would not have called Detective Gomez as a defense witness, and
Farr’s credibility would have remained intact. See Petr’s Mem. at 1–4.
The Wisconsin Court of Appeals summarized Mr. Farr’s trial testimony as
follows. See Answer Ex. 12, ¶ 11. He saw Bender inside Quarters, left for a brief
time, and, upon returning to the club, decided to bring in his gun from his car for
protection. While still in the car, Mr. Farr cocked the gun and chambered a round.
He then went inside before going back out to get his friend for “last call.” Outside,
Mr. Farr saw Bender on the sidewalk; he hadn’t seen Bender exit the bar. Mr. Farr
decided to rob back his glasses. He put the gun to Bender’s head, not intending to
shoot, but it fired multiple times.
11
The appellate court also summarized Detective Gomez’s trial testimony. See
Answer Ex. 12, ¶ 12. Mr. Farr told him that he went out to his car to get his gun
upon noticing Bender inside Quarters; that he saw Bender exit the club when he
(Farr) re-entered; that he left the club to tell his friend to come inside; that he saw
Bender outside; that he put the gun to Bender’s head, not to shoot but to scare him;
that he cocked the gun; that he touched the trigger; and that while pointing the gun
to Bender’s head the gun went off.
Mr. Farr argues that, with a proper investigation, his trial lawyer would have
realized that Detective Gomez’s testimony was “completely different” from Farr’s
testimony regarding whether Farr saw Bender leave the club and when Farr
“cocked” the gun. Petr’s Mem. at 2. The record, however, fails to substantiate the
claimed conflict. Detective Gomez never testified that Mr. Farr told him he followed
Bender out the club. Rather, both Mr. Farr and Detective Gomez testified that Farr
observed Bender outside the club while he was telling his friend to come inside for
one last drink. Compare Answer Ex. 30, at 88:5–13, with Answer Ex. 31, at 84:7–
85:18.
Likewise, it appears that Mr. Farr and Detective Gomez were describing
different actions when referencing the cocking of the gun. Mr. Farr testified that he
cocked the gun while he was in the car by pulling back its slide. Answer Ex. 31, at
24:4–25. Detective Gomez testified that Mr. Farr told him he cocked the hammer of
the gun with his thumb when he observed Bender outside. Id. at 84:14–85:13.
12
Because they described two different steps in the firing process, Detective Gomez’s
testimony was not necessarily inconsistent with Mr. Farr’s testimony.
Assuming there was a conflict, the Wisconsin Court of Appeals reasonably
determined that Mr. Farr’s trial lawyer was not deficient because the alleged
discrepancies did not “necessarily undermine the defense theory that Farr never
intended to kill Bender.” Answer Ex. 12, ¶ 13. The crux of Detective Gomez’s
testimony was that Mr. Farr—while holding back tears—had told him that he didn’t
mean to shoot Bender. See Answer Ex. 31, at 78:7–79:18, 80:12–24, 83:23–85:18,
88:11–18. Thus, while a few details provided by Detective Gomez may have differed
from Mr. Farr’s version of events, both were consistent on the key defense issue:
Farr claimed that the shooting was unintentional.
Mr. Farr overstates the importance of Detective Gomez’s testimony when he
argues that the State “made the discrepancies a big part of its theory of intent.”
Petr’s Reply at 5. During closing arguments, the State attempted to convince the
jury the shooting was intentional based on the physical evidence (5 spent shell
casings, 1 gunshot wound to the head, and 3 gunshot wounds to the torso), Mr.
Farr’s actions after the shooting (he fled and got rid of the gun), and the
surveillance video from the club (showing Farr point a gun at the back of Bender’s
head and fire). The cocking of the gun was mentioned only in passing while
describing the above evidence. See Answer Ex. 32, at 28:14–40:3.
Given that evidence, the Wisconsin Court of Appeals reasonably determined
that Mr. Farr had failed to demonstrate that he was prejudiced by his trial lawyer’s
13
alleged errors. See Answer Ex. 12, ¶ 15. Mr. Farr admitted, and the video showed,
he saw Bender outside the club, ran up behind him, pointed a loaded, cocked gun to
the back of his head, and fired. The outcome of the trial therefore likely would have
been the same with or without Detective Gomez’s testimony.
The Wisconsin state courts reasonably applied Strickland in finding that trial
counsel was not ineffective for introducing Detective Gomez’s statement. Because
trial counsel did not provide ineffective assistance, Mr. Farr’s post-conviction lawyer
was not ineffective for failing to point out his alleged errors. See Stone v. Farley, 86
F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial
or on appeal, does not constitute ineffective assistance of counsel.”).
Mr. Farr also claims that his trial lawyer was ineffective for failing to
investigate his custodial statement to Detective James Hensley, wherein Farr
apparently confessed to the shooting during an unrecorded portion of the
interrogation. See Petr’s Mem. at 4–7. The Wisconsin Court of Appeals rejected this
claim, reasoning that it was speculative and conclusory, an improper effort to
relitigate his pretrial Miranda motion, and barred by judicial estoppel. See Answer
Ex. 12, ¶¶ 7–9. These state procedural grounds are independent of the federal
question and adequate to support the judgment. See Perry v. McCaughtry, 308 F.3d
682, 688 (7th Cir. 2002) (citing Stewart v. Smith, 536 U.S. 856 (2002); Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). Mr. Farr has not attempted to excuse this
default; thus, this claim is procedurally barred. See Lewis v. Sternes, 390 F.3d 1019,
1026 (7th Cir. 2004).
14
Accordingly, Mr. Farr has not met his burden of demonstrating that he is
entitled to relief under § 2254 on his failure-to-investigate claims.
2. Whether Mr. Farr is entitled to relief under § 2254 on his
prosecutorial-misconduct claims
Mr. Farr also claims that his post-conviction lawyer was ineffective for failing
to argue that the state prosecutor engaged in misconduct when he cross-examined
Farr and gave his closing argument. See Petr’s Mem. at 9–12.
According to the United States Supreme Court, undesirable or universally
condemned comments by a prosecutor are not sufficient to establish a constitutional
violation. See Darden v. Wainwright, 477 U.S. 168, 180–81 (1986) (citing Darden v.
Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)). Rather, “[t]he relevant question
is whether the prosecutors’ comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Darden, 477 U.S. at 181
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “The Darden test has
two prongs. First, the court evaluates whether the prosecution’s statements were
improper. Second, if the comments were improper, the court asks whether the
defendant was prejudiced by them.” Bartlett v. Battaglia, 453 F.3d 796, 800 (7th
Cir. 2006) (citing Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir. 2005)).
a. Alleged prosecutorial misconduct during crossexamination of Mr. Farr
Mr. Farr argues that the prosecutor’s questions about the glasses Bender was
wearing the night of the shooting and Bender’s appearance were “designed to
15
inflame the jury[] and lay foundation for later misconduct in its closing.” Petr’s
Mem. at 9.
After Mr. Farr affirmed that he believed Bender was wearing the glasses that
were stolen from him, the prosecutor published a picture of a pair of glasses next to
a pool of blood. See Answer Ex. 31, at 18:4–20:6. The prosecutor then asked, “Are
you still interested in having those glasses?” Id. at 20:7. Mr. Farr’s lawyer objected
to the question, and the trial court sustained the objection. Id. at 20:8–9. The
prosecutor continued, “You killed a man because of those glasses?” Id. at 20:11.
Again, Mr. Farr’s lawyer objected. Id. at 20:12–13. The court sustained the objection
and ordered the jury to disregard the prosecutor’s questions. Id. at 20:14–18.
Later, after Mr. Farr confirmed that the glasses were merely an accessory
(i.e., they weren’t used to correct his vision), the prosecutor asked, “So not only was
Michael Bender killed over glasses; he was killed over vanity glasses.” Id. at 60:9–
61:8. Mr. Farr’s lawyer objected, the court sustained the objection, and, during a
sidebar, the court denied Mr. Farr’s motion for a mistrial based on improper
questioning. See id. at 61:9–12, 68:22–70:12. Before closing arguments, the court
again instructed the jury to disregard any question that was not allowed to be
answered. See Answer Ex. 32, at 25:2–7.
On cross-examination, the prosecutor also attempted to challenge Mr. Farr’s
belief that Bender was the man who had robbed him. Mr. Farr stated he told police
that the man who robbed him had bumps on his face. See Answer Ex. 31, at 38:3–
11. The prosecutor then showed Mr. Farr three post-mortem photographs of Bender
16
and asked Farr to point out the bumps on Bender’s face; Mr. Farr testified that he
couldn’t see them on the photos. See id. at 44:18–46:1. Prior to these questions, Mr.
Farr’s lawyer objected to showing the post-mortem photographs. See id. at 44:6–14.
The trial court ruled that the State could show Mr. Farr three photos but only one
could be published to the jury. Id. at 66:25–68:2.
The Wisconsin Court of Appeals determined that post-conviction counsel did
not provide ineffective assistance with respect to the above questions, finding that
the trial court’s rulings were correct. See Answer Ex. 12, ¶¶ 24–25. That
determination was not objectively unreasonable. The trial court agreed that the
questions concerning the allegedly stolen glasses were improper and instructed the
jury to disregard them. Mr. Farr has failed to demonstrate that the court’s curative
instructions—which juries are presumed to follow—were insufficient. Moreover, the
trial court allowed the questions about Bender’s appearance to rebut Mr. Farr’s
claim that he knew Bender was the man who robbed and shot him. Mr. Farr
testified that the man who robbed him had bumps on his face, but the post-mortem
photos of Bender did not show any bumps. The court of appeals therefore
reasonably concluded that the prosecutor’s comments during cross-examination did
not infect the trial with unfairness.
b. Alleged prosecutorial misconduct during closing
arguments
Mr. Farr argues that the prosecutor made five improper statements during
his closing argument:
17
(1) “I don’t care if Michael Bender robbed and shot Ron[n]ell Farr ….”;
(2) “Look at the pictures there. Where’s the bumps on his face?”;
(3) “What did [he] see in that bar? The glasses that the person was
wearing?”; (4) “If all it takes to get killed in this community is to wear
a pair of glasses and to look like someone ….”; and (5) “[T]he defense
doesn’t want to put it this way but I will because I can’t make sense of
it any other way—is that he was killed because he was wearing a
certain type of glasses. That’s all it took. He was killed because of the
glasses.”
See Answer Ex. 12, ¶ 27; see also Petr’s Mem. at 10–12.
The Wisconsin Court of Appeals addressed each statement, determined that
none rose to the level of prosecutorial misconduct, and concluded that Mr. Farr’s
trial lawyer was not ineffective for failing to object. See Answer Ex. 12, ¶¶ 26–35.
Mr. Farr has failed to show that these findings were objectively unreasonably. At
trial, Mr. Farr testified that he “knew” Bender was the man who had robbed him.
He also admitted that he “ran up on” Bender and pointed a gun at the back of his
head to get back the glasses he believed Bender had stolen from him. And Mr. Farr
said he considered taking the glasses after they fell off Bender when he was shot,
but he decided against it because he had drawn too much attention.
Thus, the statements in question were comments on (or reasonable inferences
from) the law and the evidence introduced at trial. That Mr. Farr’s sole defense was
that the shooting was unintentional did not preclude the State from presenting its
theory that Farr shot Bender because he believed he stole his glasses and that
perhaps Bender had misidentified Bender as his assailant. The appellate court
therefore reasonably applied Darden and Strickland when it rejected Mr. Farr’s
18
claim that the prosecutor engaged in prosecutorial misconduct during its closing
argument.
***
Accordingly, Mr. Farr has not met his burden of demonstrating that he is
entitled to relief under § 2254 on his prosecutorial-misconduct claims.
3. Whether Mr. Farr is entitled to relief under § 2254 on his
abuse-of-discretion claim
Finally, Mr. Farr claims that his post-conviction lawyer was ineffective for
failing to allege that the trial court abused its discretion when it allowed the State
to present certain demonstrative evidence to the jury, namely: a surveillance video
that captured “the time when Farr exited Quarters through the shooting”; a still
image from the video that “showed Farr with his arm outstretched aiming the
handgun at Bender, a flash, and what appeared to be the bullet exiting Bender’s
head”; and autopsy photos that showed the wounds to Bender’s head and torso. See
Answer Ex. 12, ¶ 38; see also Petr’s Mem. at 12–15. According to Mr. Farr, the
evidence was cumulative and unfairly prejudicial.
“[E]videntiary rulings of state trial courts are normally not subject to habeas
review.” Dressler v. McCaughtry, 238 F.3d 908, 914 (7th Cir. 2001) (citing United
States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir. 1974)). “In order to
claim a right to relief, a petitioner must establish that the incorrect evidentiary
ruling was so prejudicial that it violated his due process right to a fundamentally
fair trial, creating the likelihood that an innocent person was convicted.” Dressler,
238 F.3d at 914 (citing Thompkins v. Cohen, 965 F.2d 330, 333 (7th Cir. 1992)).
19
The Wisconsin Court of Appeals reasonably determined that the trial court
“properly exercised its discretion in managing [the challenged] demonstrative
evidence.” Answer Ex. 12, ¶ 40. The video, the still image, and the autopsy photos
constituted direct evidence of the crime and were relevant to establishing Mr. Farr’s
intent. The trial court also limited how it allowed the State to use the evidence. The
video was played twice during the State’s case-in-chief and once during its closing
argument (though it was stopped and restarted several times). See Answer Ex. 12,
¶ 37. And the photos were displayed on a screen but not given to the jury to review
nor presented during the testimony of Bender’s close friend. See id. ¶ 39, see also
Answer Ex. 28, at 37:17–39:9. Mr. Farr has not demonstrated that those evidentiary
rulings were so prejudicial as to deny his due-process right to a fair trial.
Accordingly, Mr. Farr has not met his burden of demonstrating that he is
entitled to relief under § 2254 on his abuse-of-discretion claim.
IV. Conclusion
For all the foregoing reasons, the Court finds that the Wisconsin Court of
Appeals’ decision denying Mr. Farr’s ineffective-assistance-of-counsel claims was
not contrary to clearly established Supreme Court precedent, did not involve an
unreasonable application of such precedent, and was not based on an unreasonable
determination of the facts before it. The Court therefore will deny Mr. Farr’s
application for habeas relief under § 2254.
20
V. Certificate of Appealability
There is one final matter to address. “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the [habeas]
applicant.” See Rule 11(a) of the Rules Governing Section 2254 Cases. A district
court may issue a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Court finds that Mr. Farr is not entitled to a certificate of appealability.
Mr. Farr has not demonstrated “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Of course,
Mr. Farr has a right to seek a certificate of appealability from the court of appeals.
See Fed. R. App. P. 22(b).
NOW, THEREFORE, IT IS HEREBY ORDERED that the petitioner’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a Person in
State Custody, ECF No. 1, is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
accordingly.
21
Dated at Milwaukee, Wisconsin, this 25th day of September, 2019.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?